Merris Amos

24 March 2017

After a fairly slow start, there is now a conversation about Brexit and human rights although this was quite an adjustment to make. Up until the EU Referendum result it was widely assumed that the international relationship most at risk under the current government was the UK’s membership of the Council of Europe and the European Convention on Human Rights. And then, not completely out of nowhere, Brexit happened, and for the moment, the Human Rights Act and ECHR are safe whilst the government grapples with the complexity of the enormous legal task ahead. And, also for the moment, human rights lawyers have to re-orientate to looking at what are the human rights implications of Brexit and identifying what will be the key issues over the coming years as the details of Brexit are finalised. The purpose of this post is to flag up some immediate problems; some which will arise further down the track; and conclude with some thoughts about what is the best way forward.
The Government's perspective
An optimistic assessment would be that the Government’s perspective on human rights and Brexit is fairly limited. In March 2017 the Equality and Human Rights Commission in its Brexit report concluded that the Government’s plans show a “lack of ambition” for equality and human rights. But there is not only a lack of ambition, there is almost a complete silence on human rights as Brexit is commenced in earnest. The language of “human rights” has almost completely disappeared from the statements of government ministers, in particular the Prime Minister. There is no mention of the Human Rights Act, the ECHR or the importance of guaranteeing the human rights of the people of the UK in the Brexit process and the words “human rights” only appear once in the government’s Brexit White Paper, at the very end:
. . . we want to continue to promote the values the UK and the EU share – respect for human rights and dignity, democracy and the rule of law.

Where the words “human rights” could be used, others are substituted. In the White Paper it is stated that the Government wants to protect and enhance the rights people have at work and maintain the UK’s status as a global leader on workers’ rights. Also expressed is a desire to “secure the status of EU citizens who are already living in the UK, and that of UK nationals in other Member States”. But there was no wish to give concrete expression to this desire by accepting the House of Lords amendment to the Article 50 Bill to guarantee the residence rights of EU citizens presently in the UK. As the Government appears relatively untroubled by Brexit and human rights perhaps there is no need for concern. Maybe it is safe to assume that although the words “human rights” appear to be off limits, in substance these will be looked after and there is really no need to worry? Unfortunately not.

Inevitable outcomes for human rights from Brexit
There are three inevitable negative outcomes for human rights from Brexit. First, all indications are that Brexit will result in a reduction in human rights protection for the people of the UK, both substantively and procedurally. No undertakings have been given that Brexit will be used as an opportunity to improve upon existing EU human rights guarantees. Whilst the Great Repeal Act (which could be more accurately titled the Great Incorporation Act) will incorporate all existing EU law into UK law, no mention has been made of the EU Charter of Fundamental Rights which is a much more progressive statement of rights than the ECHR including many social, economic and cultural rights.

Whilst in UK law the Charter can only be utilised in relation to the interpretation and application of EU law, where it applies it can have a significant impact as directly effective EU law trumps primary legislation, unlike the fairly weak, by comparison, declaration of incompatibility available under the HRA. The strength of EU human rights law was most recently illustrated by the Court of Appeal’s judgment in Benkharbouche in February 2015 where it held that the sections of the State Immunity Act which prevented the employment claims of embassy staff from being brought in UK courts, had to be dis-applied as these were incompatible with Article 47 of the Charter (the right to an effective remedy and a fair trial).

Also lost will be the jurisprudence of the Court of Justice and the general principles of EU law, such as equality. Although it has been promised in the White Paper that “the preserved law should continue to be interpreted in the same way as it is at the moment”, there are no guarantees about what will remain in place, and for how long.

Second, Brexit will remove the role of the institutions of the EU, the Court of Justice, the Commission and the European Parliament from the national political and legal system. Minister for Brexit, David Davis, knows very well the benefits supranational supervision can bring having enjoyed a fundamental rights victory in the Court of Justice himself. In late December 2016 the Court held that the Data Protection and Investigatory Powers Act 2014 was incompatible with the requirements of EU law, specifically the privacy protections of the EU Charter.

As the UK retreats into isolationism, it is important to be aware of the value of supranational supervision and what will be lost. Brexit means that it will not be possible for individuals to argue before the courts of the UK that an aspect of national law is incompatible with EU law as EU law will be national law with no superior status. The safety net provided by the institutions of the EU, which are independent of the various political and economic pressures on national institutions, will be removed. And the value of the various institutions of the EU as a catalyst for change at the national level will be lost. Current areas of EU law incorporated by the Great Repeal Act will be effectively frozen in time at the point of Brexit, any change or development subject to the prevailing national political winds which are not presently blowing in favour of progress on human rights and equality.

Third, Brexit will be the first substantial step towards the UK leaving the ECHR. In the run up to the Referendum there was considerable, and often deliberate, confusion between the Council of Europe and the EU. It is still the assumption of many that these two are one in the same and that once Brexit happens, there will no longer be any adverse judgments from the European Court of Human Rights or pesky calls to implement the prisoner voting judgment outstanding since 2005. There will also be the pressure placed upon the HRA and ECHR by aspects of Brexit which may be incompatible with Convention rights.

Possible outcomes from Brexit
Whilst these three outcomes are inevitable, there are also some possible outcomes for human rights, depending upon the terms of the exit deal negotiated. This deal may, or may not, have serious implications for the human rights of some groups and this was very much the focus of the Joint Committee on Human Rights as the Article 50 bill made its way through Parliament.

There is already widespread concern that the treatment of the nationals of other EU Member States living and working in the UK will raise issues under Article 8 of the ECHR which protects the right to private life and the right to family life. Whilst the Government stated in its White Paper that it wants to secure the status of EU citizens who are already in the UK, and that of UK nationals in other Member States, as early as it could, this did not extend to supporting the amendment made to the Article 50 Bill by the House of Lords to guarantee the residence rights of EU citizens presently in the UK.

Echoing the Joint Committee’s report, members of the House of Lords had argued that it was not morally appropriate to treat individual’s human rights as a bargaining chip. As a practical matter, it was also pointed out that not securing human rights raised the potential for lengthy litigation under the HRA in UK courts and also subsequently the European Court of Human Rights, which could lead to uncertainty and possibly overwhelm the UK courts and tribunal system with individual claims. These arguments were not accepted and the Bill received the royal assent unaltered although David Davis did promise that Parliament will have a vote stating that “nothing will change for any EU citizen in the UK without Parliament’s explicit approval beforehand”.

Other violations of Convention rights are also possible outcomes of the final deal struck including Article 14 (non-discrimination) claims arising from bright-line distinctions being made between different groups of EU nationals who are granted permission to remain in the UK based upon, for example, level of income or length of residence. It is also been argued that stripping UK nationals of their EU citizenship is incompatible with their right to respect for private life as protected by Article 8. Some businesses are raising concerns that should the deal struck result in extra costs for exports, compensation will be sought for this loss leaving the government vulnerable to challenge under Article 1 of Protocol 1 – the right to protection of property.

Of course, none of these rights, as protected by the HRA and ECHR, is absolute and can be subject to lawful interferences which are demonstrated to be necessary. But the path to demonstrating the necessity for the interference is not yet clear. Should Parliament have a say during key points of the negotiation process, such as agreeing how EU nationals resident in the UK are to be treated, this may go some way towards lawful justification. But given the government also rejected the Lords amendment that Parliament have a meaningful vote on the proposed withdrawal agreement before it is signed, it is possible that there will be no debate in Parliament on this aspect of the deal leaving it even more open to a variety of successful human rights challenges than it might otherwise be. All that Parliament has, at present, is a commitment from the Government that it will bring forward a motion on the final agreement to be approved by both Houses of Parliament before it is concluded. It is not clear what level of debate will be allowed before approval is required and how reliable a commitment this really is.

Going forward
Going forward, for supporters of human rights the strategy must be to minimise the negative aspects of the inevitable consequences of Brexit, and try to avert the possible breaches of national and ECHR human rights law. This will mean keeping a very close eye on the negotiation process and also the passage of the Great Repeal Bill through the Westminster Parliament.

During the negotiation process, it is important to remember that the institutions of the EU are legally bound by the Charter of Fundamental Rights and the UK government by the Human Rights Act. The European Parliament has already indicated that it will protect the rights of EU nationals living in the UK and the rights of UK nationals in other EU member states and will demand that the CJEU has oversight of the transition deal. The European Parliament’s civil liberties committee is currently taking evidence on the experience of EU citizens in the UK as well as UK nationals resident elsewhere in the EU. These initiatives were recently covered in the British press with the headline in The Express “human rights law could scupper May’s plan for EU migrant cut-off date”.

Back in the UK, Parliament will consider the Great Repeal Bill. It will be important for Parliament to ensure that any repeal or amendment of EU law with implications for human rights will be subject to vigorous Parliamentary scrutiny and debate. It will be also important to ensure that when Ministers use Henry VIII powers (those powers that allow Ministers to use secondary legislation to amend primary legislation) to give effect to the outcome of the negotiations that there is also proper parliamentary scrutiny and the affirmative procedure is used where human rights issues are engaged. It should be written into the Great Repeal Bill that both the jurisprudence of the Court of Justice, and the Charter of Fundamental Rights, must continue to be utilised to interpret this body of law. Also, as recently suggested by the Equality and Human Rights Commission, serious thought must be given to how governments and legislatures around the UK keep pace with future equality and human rights standards coming from the EU given that there will be no longer a legal obligation to act.

Brexit very clearly has a number of implications for the effective protection of human rights in the UK. Some are unavoidable, but there are some possible breaches which could definitely be avoided should effective pressure be applied. Over the next couple of years the most important task will be scrutiny. To keep a close eye on what is being agreed between the EU and the UK and to make sure questionable negotiating stances are returned to Parliament for debate. Parliament and its various committees will need all the help that can be offered with checking the Great Repeal Bill and the powers afforded to Ministers to cleanse the statute book of unwanted EU laws. And it will be important not to forget that proposals for the repeal of the HRA and the de-ratification of the ECHR will be the second stage of this project. These are challenging times for supporters of human rights and there is no easy way forward but it will be important to stay on top of what is happening, to be vigilant, and to not to give up.