May 24 2022

What Brexit means for our human rights

What Brexit means for our human rights


David Cameron Holds A Press ConferenceAs a human rights lawyer, I have been asked to write a short blog on the impact to human rights in the UK following Brexit.

The current high regard for ‘so called experts’ in the UK means I fully accept that the man holding the sign ‘Golf Sale 100 yards on the right’ will also hold a view which people should seek out and champion if they wish.

It is worth highlighting from the start that the UK’s withdrawal from the EU will not automatically affect the UK’s status as a signatory to the European Convention on Human Rights (ECHR).

At the time of writing, at least, the UK was still a party to this Convention. It therefore remains binding on the UK, as well as on all European Countries save for Belarus, and including all 28, soon to be 27, EU Member States. It provides protection in respect of a number of human rights which I had thought, until very recently at least, most people in the UK would agree were pretty fundamental: the right to life; not to be subjected to torture; free speech; fair trial; freedom of religion etc.

Most of these rights find their way into UK law through the UK Human Rights Act (HRA), not EU law. British citizens will therefore still be able to rely on their rights in the ECHR both before the domestic courts and the European Court of Human Rights (ECtHR). It will also mean, to the surprise of some – given the conflation during the referendum of the ECtHR and the Court of Justice of the European Union – that things like prisoner voting will not magically disappear on Brexit.

The protection of these rights may, however, be subject to change arising out of Government plans to consult on repealing the Human Rights Act and replacing it with a Bill of Rights.

Although there is no official proposal in this regard, scepticism about the ECHR is at a similar level (or higher) to that of the EU and would be the next logical target for Euro-sceptics. The timeline for any Bill of Rights consultation and proposals are likely to be influenced by the mammoth and complex task of the UK trying to identify and uncouple itself from any EU laws it now deems surplus to requirements. It is also likely to have to wait until any further Scottish independence referendum.

Another question is what happens to the EU Charter of Fundamental Rights?

The EU Charter mirrors the rights found in the ECHR but also gives some additional rights. It binds the EU and its institutions, as well as EU Member States when ‘implementing Union law’. The UK has opted out from certain bits of the Charter but where the Charter does apply, it has primacy as far as the interpretation of EU law is concerned. In cases where the Charter provides for stronger protection than the ECHR (such as children’s rights), then these rights will be lost when the UK does withdraw from the EU.

Free movement of persons remains, for now, a legal right of UK citizens as members of the EU.

The withdrawal negotiations will need to reach agreement on the right of British people to travel and work in the EU, and the counter right of EU nationals to do the same in the UK.

It is arguable that the general principles of EU law (such as proportionality) could protect acquired rights either in UK courts, or those in another member state. However there is a strong argument that EU law will not apply to the situation of UK citizens living in another member state as they will no longer be EU citizens, and will therefore lack the necessary ‘connecting factor’ with EU law. This could lead to different treatment of acquired rights as between UK and EU citizens.

Finally the EU has been active in a number of human rights protections including, as was continually stressed, employment and anti-discrimination law.

Many of these protections, such as non-discrimination on the basis of race, sex, sexual orientation, religion, disability, and age, have been incorporated into UK law by the Equality Act 2010. Brexit will mean the EU law basis of these rights will disappear but it would not change the Equality Act or other UK legislation such as the Working Time Regulations. However critics argue that if Parliament wanted to weaken such employment rights, Brexit makes it much easier to do so, given EU minimum standards of protections would no longer provide an ‘annoying’ backstop to any changes.