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Whilst Brexit negotiations adamantly persist, causing a wave of uncertainty across various industries and businesses, human rights commentators and activists have raised their concerns over the possible changes that could be seen to laws incorporating our fundamental rights and liberties.
The extent of the proposed changes to “update” our intrinsic rights which are derived from EU law are unclear, but Brexit will certainly have an impact on how these are to be included in domestic laws once negotiations cease. The government have not clarified the changes that will be implemented but the toughened immigration stance may show that citizens need to brace themselves for wider changes. This article will explore possible effects that could be seen once negotiations cease and the fate of Britain is decided.
Domestic Human Rights protection
The evolution of human rights protection within the UK was shaped by the ratification of several international and regional human rights treaties, placing an obligation on the member states to incorporate these rights in their domestic laws. Two examples of domestic legislation worth considering when assessing the potential impact of Brexit are the Human Rights Act 1998 (‘The HRA’) and the Equality Act 2010 (‘The EA’).
The HRA came into effect in October 2000 and guarantees fundamental rights and liberties to all human life under domestic law. The HRA has been successful in protecting fundamental liberties such as the right to a fair trial (Article 6), the right to respect for private and family life (Article 8), right to freedom of thought, belief and religion (Article 9) and a right to freedom of expression (Article 10).
It was introduced to incorporate the European Convention on Human Rights (ECHR) into domestic law. As the ECHR originates from the Council of Europe and not the EU, its applicability to the UK will not be affected by Brexit and the government will still be obliged to ensure the protection of the rights within it. The rights enshrined in it will continue to be afforded and the right to refer contraventions of such rights to the European Court of Human Rights (ECtHR) will continue. Only Human Rights protections afforded by the EU will no longer be binding as a result of Brexit.
However, the Conservative government has long vocalised its ambition to alter the Human Rights Act. The fear remains that Brexit provides the political opportunity for the government to implement changes to existing rights, to shift the balance of power in favour of the state and authorities in the interest of protecting national security and promoting an effective government, as stated in the Conservative manifesto.
The Conservative government’s attitude towards EU human rights was evident during the Brussels talks held in March where Boris Johnson told negotiators that the UK would not formally commit to keeping the ECHR and that a trade agreement ought to have no mention of the UK’s ratification of the ECHR either.
This is contrary to the earlier stance of the government being committed to the ratification of the ECHR, even after Brexit. Despite the concerning lack of commitment from the government, it is clear that they face political pressure as EU negotiators have insisted on the importance of Britain’s commitment to the ECHR for any favourable exit package for the UK. Much to the dismay of several Conservative members, recent reports suggest that Boris Johnson has agreed to compromise and is willing to guarantee that the UK will maintain its commitment to the ECHR.
The EU Charter of Fundamental Rights
The EU Charter of Fundamental Rights (“The Charter”) will no longer apply, as confirmed by the government in the Withdrawal Act 2018. The Charter is the pivotal EU treaty setting out the social and political rights of all EU citizens across six chapters (Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights and Justice). It was introduced by the Treaty of Lisbon and is binding on all EU Member States. Whilst the UK will no longer be bound by the terms of the Charter, it is questionable whether this will have any legal impact on the rights afforded to individuals within the UK. As with most Human Rights treaties, the rights contained in it mirror and overlap those protected by treaties that will remain binding both on a regional and international level and those rights will continue to be protected, reducing the practical impact.
The Charter has, however, led to its own distinct jurisprudence (body of law) when it comes to the interpretation of the extent of the rights enshrined within it. For example, the ‘right to be forgotten’ has been derived from the right to private life and personal data. Although rights are afforded elsewhere, the scope of interpretation may be affected. Additionally, on a procedural level, the Charter enabled individuals to bring legal action to strike down domestic legislation which is incompatible with fundamental rights, this is not possible under the ECHR.
The government has stressed that the Charter “is only one part of the UK’s human rights architecture” and not retaining the Charter does not affect any of the substantive rights that citizens are entitled to. The fundamental rights afforded to citizens will remain unaffected and the loss of the Charter should not pose a threat to human rights protections within the UK.
Equality Act and Brexit
The Equality Act was introduced to offer extensive protection to people from discrimination in the workplace and society. This replaced previous anti-discrimination laws and brought together all related laws into a single act. It was intended to promote fairness and equal opportunities for all citizens, irrespective of age, race or sexual orientation.
Although it mirrors and implements the four major EU Equal Treatment Directives, it also offers protection beyond the EU directives, such as protecting against discrimination based on a person’s nationality and citizenship, and extending individuals’ rights in areas of life beyond the workplace in religion and/or belief, disability, age, sex, sexual orientation and gender reassignment. In addition, it affords protections required under other international treaties. So, even though the obligation to comply with EU law will cease, there are other existing obligations on the government to provide equivalent protection in any event.
Domestic legislation has historically evolved and progressed due to the influence of EU law over the years, particularly concerning key decisions relating to the rights of pregnant women, those with disabilities and part-time/worker’s rights. Numerous EU Directives promote the basic principles of equality and uniformly refine unclear areas of anti-discriminatory laws. Brexit potentially provides the government with the power to introduce changes to worker’s rights and means the UK will no longer be part of a community which affords immeasurable importance to equality which may impact on the UK’s advancements in developing equality law and principles.
Judgements of the European Courts
As it is not an EU institution, the jurisdiction of the ECtHR remains unchanged. The jurisdiction of the Court of Justice of the European Union (CJEU) remains virtually unchanged under the Withdrawal Agreement until the end of the transition period on December 31st 2020. During that time EU laws and precedents must be applied by domestic courts UK courts are also still able to refer any points or interpretative issues to the CJEU.
However, the government has stressed the importance of both the Court of Appeal and Supreme Court being able to depart from retained EU case law after the transition period, to alleviate pressure on the UK Supreme Court and increase efficiency in the judicial system. Any decisions of the CJEU after the transition period will not need to be taken into account, but domestic courts and tribunals have the option to do so if deemed appropriate. This leaves judges with the power to determine whether or not it would be suitable to consider post-Brexit EU decisions and the extent to which any weight should be given to them. Whilst it is possible that this position may change in the future, it provides for judicial discretion in the interim.
Changes to Asylum Rights
One of the areas of law perhaps most in danger of change is that relating to asylum and immigration. Priti Patel, the Home Secretary, has become infamous for her proposed hard-line immigration policies, and changes that could be seen post-Brexit include the introduction of a points-based system and the requirement for EU-Nationals to apply under the EU Settlement Scheme to continue living in the UK beyond 31 December 2020.
Pressure has risen within the Conservative party to tighten restrictions and implement legislation to introduce stricter deportation time limits, inevitably reducing the number of successful immigration applications and asylum seekers. The Court of Appeal recently quashed the Home Office policy of removing migrants from the UK without allowing them to seek access to justice, with the judges stressing that the right to seek justice, have access to legal help and redress to the courts, are rights that should be available for all humans; being a migrant cannot be an exception to this universal rule.
The obligations on the state under Dublin III Regulation (which establishes which country is responsible for an asylum claim, based on the country he/she enters first) could be lost in a No Deal scenario, further restricting the criterion for successful asylum for more vulnerable migrants. Whilst the EU obligations may be lost as a result of Brexit, the right to seek and enjoy Asylum from persecution from other countries is a human right recognised universally. Whilst it seems this is a right that the government wants to restrict as far as it possibly can, in doing so it will potentially be in breach of non-EU international and regional obligations.
Changes to protect British Soldiers
Perhaps riding the tide of nationalist post-Brexit, the government introduced The Overseas Operations (Service Personnel and Veterans) Bill 2019-21 proposing to introduce into legislation that no claim can be brought against former soldiers for any issues arising before 2000 within the UK. This will protect army veterans and soldiers from having human rights abuse claims being brought against them, including those for war crimes and torture, although the primary aim is to bring an end to bringing “vexatious claims” against soldiers.
The Conservative party have claimed extensions of human rights laws have been weaponised against members of the Armed Forces and wish to protect soldiers whilst reducing the timescale for a victim to come forward. However, by including torture and war crimes as offences that would be effectively be covered by an amnesty, the legislation will not comply with the Geneva Convention and other international and regional human rights treaties. The International Criminal Court will still have jurisdiction. As such, any impact of Brexit on this Bill is political as opposed to legal.
The Human Rights Act is a powerful instrument symbolising Britain’s commitment to upholding universal rights. Whilst there remains a risk of the government withdrawing itself from the ECHR, the government have continuously reassured citizens and European authorities that no action post-Brexit would pose a danger to the fundamental rights of each citizen. It seems more likely, that the government will opt to adopt a considerate approach whereby any legislation reviewed or reformed will take into account the political climate and comply with their non-EU international and regional obligations.
The long-term importance of maintaining a stable relationship with the EU is undeniably imperative and essential for trade, whilst simultaneously ensuring respect for the universality of human rights. The evolution of anti-discriminatory legislation has established clearer rights for many groups and leaving the EU could pose a risk for current legislation to be weakened should the government bow to political rather than legal pressures whilst also denying vulnerable groups of any future progress that would be made under EU law.
“Whilst it does have regard to EU law, the Equality Act 2010 is UK statute and therefore very much enshrined in domestic legislation. It is not expected that the government will seek to make any changes to the Equality Act 2010 post-Brexit.
In any event, it is not likely to be a priority in January 2021 when the UK is set to leave the EU, as practically the UK government is likely to have its hands full in dealing with the ongoing Covid19 pandemic.
However, if there are proposed amendments to the Act, any amendments are not expected to significantly alter the mechanics of the protections that the Act provides. Therefore, the way in which we, as employment lawyers, and indeed practitioners in other disciplines who deal with Equality Act issues on a day to basis, is unlikely to be affected.
After all, practitioners, particularly employment lawyers, are well used to the legal mechanics of the protections that the Act provides as the same or broadly similar protections were provided via several statutes which were consolidated into the Equality Act 2010 and often caselaw under the statutory provisions which predate the Equality Act 2010 e.g. the now-repealed Disability Discrimination Act 1995, remains good law that is often utilised in the furthering of Employment Tribunal cases.”
“Many Human Rights commentators feel that in actuality a direct repeal of the HRA is unlikely and that gradual erosion of Human Rights will take place. A recent example is the news that the Home Office is drafting a legal definition as to what constitutes ‘inhuman and degrading treatment’ restricting judicial discretion in order to curb human rights law’s ability to block deportations. So, whilst the legislation remains in place, the practical efficacy and scope of application will be undermined. Essentially, the attack on Human Rights by the government, should it occur, would essentially be a death by a thousand cuts rather than a direct head-on attack more likely to open them up to criticism.
It’s important to bear in mind that the UK will want to ensure continued collaboration with the EU in relation to security and there will be an expectation that states are on a level playing field when it comes to the associated Human Rights protections. As such, it is hoped that a degree of compliance will be necessary for the UK to continue to engage with EU states placing pressure on the government to preserve protections to some degree.”
Whilst there exists a school of thought our rights could be radically changed post-Brexit, this article has shown that this is unlikely and perhaps the main issue likely to face human rights would be the interpretation surrounding them; the practical extent and applicability of such rights that already exist as opposed to any threats that could impact their actual existence. That being said, only time, the outcome of the negotiations and the end of the transition period will tell the extent to which any legislation could be amended, and our rights modified.
This article is intended for guidance only and must not be relied upon for specific advice.