Brexit continues – so does the fight to protect our rights

Posted by Nadia O'Mara on 12 April 2019

29 March, 12 April, indicative votes, joint plans, flextension, MV1, MV2, MV3 …

Brexit jargon and a political climate defined by uncertainty can get overwhelming. That’s why on what would, or could, have been Brexit Day 2.0 we are bringing you a human rights update to cut through the noise.

Human rights in the Brexit negotiations – the story so far

On 14 November 2018, the summary draft of the political declaration on the future relationship between the EU and the UK was published. Throughout the Brexit process, human rights have been side-lined.

It was therefore a great surprise to see human rights front and centre in the summary draft. The very first paragraph contained a “[re]affirmation of the United Kingdom’s commitment to the European Convention on Human Rights (ECHR)”.

In the section on law enforcement and judicial cooperation in criminal matters things got even better: the future relationship was to be “underpinned by long-standing commitments to the fundamental rights of individuals, including continued adherence to the ECHR and its system of enforcement”.

The celebration was short lived, however. When the full draft was published on 22 November, the language on human rights was diluted. No longer were human rights under the ECHR headlined. And the UK was now merely committing to “continued adherence and giving effect to the ECHR”. The robust commitment to the ECHR’s system of enforcement – the judicial mechanism through which rights become meaningful – had fallen away.

Does this mean anything? The draft does after all still commit the UK to adhering to the ECHR. The Government said that the change of drafting was insignificant, responding to a letter asking about the diluted language from the chair of the House of Lords EU Select Committee.

However, in Liberty’s view any change to drafting is significant – particularly when it appears to dilute the UK’s commitment to the binding nature of the European Court of Human Rights’ judgments.

Rights are meaningless if they cannot be enforced. It is vital therefore that the UK remains committed to the ECHR’s full system of enforcement. There can be no question of a break in the link between the UK courts and Strasbourg.

That’s why we wrote to the leader of the opposition Jeremy Corbyn MP and his shadow Brexit secretary Keir Starmer calling on them to raise the issue of human rights when they met the Prime Minister Theresa May for Brexit talks.

The future of the Human Rights Act

It has long been the Conservative party’s policy position to repeal and replace the Human Rights Act 1998 (HRA) with a ‘British Bill of Rights’. In its 2017 general election manifesto, the Conservative party watered down this policy, saying it would hold off “while the Brexit process is underway”.

The Government never made clear what the duration of the ‘Brexit process’ would be and given the current climate with multiple Article 50 extensions, it is less clear than ever. Nevertheless, this shift in policy means the HRA has not faced any direct threats over the last few years.

However, the future of the HRA in a post-Brexit UK remains unclear. In its response to the letter from the EU Select Committee’s question about its plans for the HRA after Brexit, the Government simply repeated its 2017 manifesto position. Just last month during justice questions, a minister dropped the reference to the Brexit process – stating that: “The Human Rights Act 1998 reflects [the UK’s commitment to human rights] and gives further effect to the ECHR in our domestic law, and [the Government] are not considering amending or repealing it”.

Human rights advocates will hope that this change in formulation represents a shift in policy by this Government. Whether this is the case remains to be seen. What is crystal clear to us at Liberty is that the HRA has always been and remains the most effective tool for giving meaningful effect to our fundamental rights.

After Brexit the role of the HRA will be greater than ever and at Liberty we will remain vigilant to ensure that the Government upholds its commitment to both the ECHR and the HRA.

You can read our response to the House of Lords EU Justice sub-committee inquiry into ‘human rights after Brexit’ here.

Our letter to Jeremy Corbyn can be found here.

Nadia O'Mara Liberty

Nadia O'Mara

Advocacy and Policy Officer