Merris Amos

4 July 2016

Over the last week many have been waiting for someone who leads this country, or would like to lead it, to say something about human rights. The referendum result did not mean that the Human Rights Act 1998 (HRA) was immediately repealed or that we automatically lost the protection of the European Convention on Human Rights (ECHR) or the European Court of Human Rights (ECtHR). As many despair about the referendum result, look to our antiquated constitutional arrangements and common law to provide a remedy, or agitate for another referendum or a general election, few have considered what impact the strongest aspect of our constitutional arrangements might have leading up to Brexit and beyond. In recent times the only statement that we have had about human rights is from Conservative Party leadership contender Theresa May who has promised that should she be elected leader, and therefore Prime Minister, she will not pursue her former plan to lead the UK out of the ECHR as well. Not because she thinks this is morally bankrupt, but because she knows she wouldn’t have the votes in Parliament to do it – assuming Parliament would actually get a vote. Meanwhile, Michael Gove tells us that we should follow the Australian example on immigration, neglecting to tell us that the Australian system has developed in this way, detention centres and all, as Australia has no judicially enforceable bill of rights at the Federal level.
Up to that prerogative act
The most important question is what impact human rights law might have on the current maelstrom. Rather than procedural questions, as most campaigners for the HRA have been preoccupied with in recent years, these are difficult questions of substantive human rights law but there are some arguments to be made. We have all seen the shocking reports of the rise in xenophobic and racist abuse. A week after the Referendum result, True Vision, the police run website where hate crime and incidents can be reported, stated that there had been a fivefold increase in reports. Many are calling for the police and other public authorities to do more to protect victims and potential victims and Article 3 of the ECHR, as given effect in our law by the HRA, obliges them to do so. Because of the HRA, public authorities are under a positive obligation to take reasonable steps to protect individuals from this type of ill-treatment. Furthermore, the positive duty on the State under Article 3 also encompasses a procedural duty to investigate where this type of ill-treatment has occurred. It could even be argued that present circumstances are so dire that a public inquiry into its causes, including aspects of the various referendum campaigns, should immediately take place.
Pushing the Article 50 button
But most legal attention has been focussed on the prerogative act that will lead to Article 50 of the Treaty on European Union being triggered and the two year countdown to our exit beginning. Here the HRA also offers an argument perhaps not quite as strong as the common law, but almost. As constitutional lawyers have pointed out, triggering Article 50 is most likely to take place without the involvement of Parliament, but via an exercise of prerogative power by the Prime Minister. Whilst the courts are not keen on it, it has been grudgingly admitted in a number of judgments that the HRA does allow a court to review an exercise of prerogative power for its compatibility with human rights and, as this would not be an Order in Council, it would be possible for a court to strike down this exercise of prerogative power should it be incompatible with human rights. Should an Act of Parliament eventually be the route chosen, the HRA also allows the courts to review this although the remedy would only be a section 4 declaration of incompatibility. It is not clear what effect this would have for the European Council. Would it still consider this a notification from the UK “in accordance with its own constitutional arrangements”? Or can it only be a notification once national legal challenges are exhausted? Perhaps only the Court of Justice of the EU could decide, all that is clear at this point is that it the wording is not definitive one way or the other.

Most importantly, before any of this could happen, a convincing argument of substantive human rights law would have to be made. Searching the jurisprudence of the ECtHR for a precedent is a waste of time. This situation is sui generis – it is highly unusual for States to extract themselves from beneficial international agreements. However, we repeatedly hear predictions concerning possible job losses, companies relocating, and the inability of some businesses to survive without EU migrant labour. All of this raises questions under Article 1 Protocol 1 to the ECHR (peaceful enjoyment of possessions). Whilst an argument that the prerogative act of the Article 50 notification actually interfered with these rights would be difficult to make, a positive duties argument is not as far-fetched. The HRA places whoever pushes the Article 50 button under a positive duty to protect these rights. The following quote from the judgment of the European Court of Human Rights in Kotov v Russia (2012) is of particular relevance:

. . . genuine, effective exercise of the right protected by Article 1 of Protocol No.1 did not depend merely on the State’s duty not to interfere, but might require positive measures of protection, particular where there was a direct link between the measures an applicant might legitimately expect from the authorities and his effective enjoyment of his possessions . . regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole. It is also true that the aims mentioned in that provision may be of some relevance in assessing whether a balance between the demands of the public interest involved and the applicant’s fundamental property rights has been struck . . .
Any sensible Prime Minister would carry out a thorough proportionality analysis first. To put it simply, if businesses and individuals are going to lose a lot of money as a result of this decision, whoever makes it better have a very good reason – nationalist ideology, not liking foreigners or reclaiming sovereignty is just not going to cut it before our courts, or the European Court of Human Rights. Indeed, the ECHR was drafted in part to ensure that these types of reason did not trump fundamental human rights. Furthermore, whilst we may be divided over whether or not to leave the EU, a far higher number would agree that whatever happens, fundamental human rights must be respected.
What happens next?
Should the Article 50 notification be made, the negotiation between the UK and the institutions of the EU to determine the arrangements for our withdrawal would commence. The EU treaties only cease to apply to us from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification. The process of negotiation from the UK side would be again, a prerogative act and therefore the State would be bound to act in accordance with the HRA, particularly, as explained above, to ensure the most effective protection for human rights. The EU institutions would be bound by the EU Charter of Fundamental Rights, which, at Article 15, enshrines freedom of movement and at present it is not clear how any agreement could be made which would breach this right.

One of the most important questions in this process is what will be agreed in relation to EU nationals living and working in the UK, and UK nationals living and working in other EU countries. In the event that it is agreed there will no longer be freedom of movement, to guarantee protection for human rights the agreement must ensure respect for private life, family life, and, as explained above, the peaceful enjoyment of possessions. In claims under the HRA, it has been clearly established in the immigration context that removal can constitute an interference with private life, particularly where an individual has been living in the UK for a number of years, formed relationships, pursued employment, opened a business or undertaken a programme of study. Furthermore, should any “bright line rules” be drawn up about who can stay and who must leave, and what rights the respective groups will enjoy, Article 14, the prohibition of discrimination in the enjoyment of Convention rights will come into play. Many are also concerned that should the terms on which we exit result in the end of our own freedom of movement, the nature of British citizenship for us, and our children, will have changed fundamentally. Whilst again, there is no precedent in ECHR jurisprudence to draw upon, an argument could be made utilising Article 8, the right to respect for private life.

Any national act to implement the withdrawal agreement, whether it be an Act of Parliament or discretionary act which does not respect these rights, will be vulnerable to challenge under the HRA and again, the government will have to prove the proportionality of its decision. If the claim is made under Article 8, interferences can only be justified on a limited range of grounds – “national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” For EU nationals lawfully residing and working in the UK up to this point, it is difficult to see what justification for removal would apply. Given the current evidence about “economic well-being” as a result of Brexit, that argument may be very difficult for the Government to make. Human rights law also makes this an area ill-suited to blanket treatment. As was noted by the Court of Appeal in 2010:

The weight to be attached to the public interest in removal of the person in question is not some fixed immutable amount. It may vary from case to case, and where someone is of great value to the community in this country, there exists a factor which reduces the importance of maintaining firm immigration control in his individual case. The weight to be given to that aim is correspondingly less.
Once national remedies are exhausted, it will be open to aggrieved individuals to take their claim to the European Court of Human Rights.
The great benefit of introducing human rights law to this debate is that it requires the government to clearly demonstrate the proportionality of the decisions it takes on the assumption that these will interfere with a variety of fundamental human rights. Giving effect to the results of a national referendum on a very simplistic question is unlikely to provide an acceptable justification. It is possible that should the HRA, and the ECHR, as interpreted and applied by our own courts and the ECtHR block the path our government would like Brexit to take, these instruments and institutions will be in more danger than they have ever faced before. For the UK to leave the ECHR is, like the triggering of Article 50, a prerogative act which in law, does not involve the consent of Parliament. However, the repeal or amendment of the HRA does. It would be a very strange turn of events if Parliament’s only role in this saga was to save the HRA, which in turn, would ensure that Brexit is compatible with human rights guarantees, a fundamental feature of our constitutional arrangements.