The Conservative Party’s manifesto for the 2015 elections promised to introduce a British Bill of Rights and repeal the European Convention on Human Rights. A proposition that was backed by Theresa May since « The ECHR can bind the hands of parliament, adds nothing to our prosperity ». In the new Prime Minister’s opinion, the ECHR is responsible for controversial human rights decisions, not the EU.
However, during her launching campaign she went back on her words saying she would not leave the ECHR. What does this turnaround mean for human rights? Will the Conservative Party follow through its campaign commitment with a British Bill of Rights? If so, how would human rights be protected?
HR activists raise concern about xenophobia rise since Brexit.
Since the results of the referendum came out, we have witnessed a huge rise in hate crimes, xenophobic and racist acts. There was an increase of 42% incidents during the last two weeks of June in comparison to that same period last year. In London, the police noted a rise of 50% reported hate crimes since the referendum. As B. Ward’s of Human Rights Watch puts it « A Pandora’s Box of hate has been opened in the country ».
The future is unlikely to reverse the trend as recent polls show 29% of people admit having racist views and a quarter of Britons think immigrants should be encouraged to leave the country. The latest survey published by the Pew Research Center, indicates this is a European trend: Europeans fear the recent refugee influx will heighten the risk of terrorist attacks and cost their countries jobs and social benefits.
The protection of Human Rights under the Charter of Fundamental Rights and ECHR
At present, human rights in the United Kingdom are protected by two equally binding texts: the Charter of Fundamental Rights (CFR) which became legally binding after the Lisbon Treaty and the European Convention on Human Rights (ECHR), for which all Council of Europe member states are party to. The Charter is related to the European Union and the ECHR is related to the Council of Europe – which is not an EU institution. There are two corresponding courts: the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR).
There is no overlapping of these two texts and courts since they stem from different practical and theoretical rationales. Furthermore, article 52 of the CFR states that wherever the charter contains rights that correspond to the ECHR, « the meaning and scope of those rights shall be the same » as those granted by the Convention.
Whilst, the ECJ is an integrative agent of the EU, the ECtHR provides minimum human rights standards: the ECHR is seen as a floor and the ECJ as the ceiling. From a practical perspective, the effects of adverse ruling by the ECJ and the ECtHR are different: when a national legislation violates an EU law, the Member State should repeal or amend it. This is not the case with the ECtHR. Implementation of ECtHR judgments is more dependent on national states discretion and on their national constitutions. Thus, the ECJ has a more active role and intervenes directly in national legislation whereas the ECtHR has a more passive role which leaves wider scope to national states for implementation.
The Conservative Manifesto – A British Bill of Rights
In 2015, the Conservative Party manifesto announced the ECHR would be replaced with a British Bill of Rights. Currently, the Human Rights Act (HRA) from 1998, incorporates the ECHR into domestic law. According to the Conservative Party, the Labour is to blame for introducing the HRA: « Labour’s Human Rights Act undermines the role of UK courts in deciding on human rights issues in this country. ».
The Manifesto puts four arguments forward to support the need for change. First of all, it accuses judges of Strasbourg to expand the meaning of the rights in the Convention beyond of what was initially agreed when it was signed. Also, the HRA undermines the role of UK courts in deciding on human rights issues: section 2 of the HRA requires the UK courts to take into account the ruling of the ECtHR when it interprets the Convention. Moreover, this HRA undermines the sovereignty of parliament and democratic accountability to the public. At last, the HRA goes beyond the UK’s obligation under the Convention. Indeed, the Convention neither requires direct incorporation in domestic law, nor that Strasbourg’s jurisprudence is binding on domestic courts.
The Manifesto states that the Conservative party will repeal the HRA so that the ECtHR is no longer binding over the UK Supreme Court and that it becomes only an advisory body. The British Bill of Rights and Responsibilities intends to make the Parliament’s sovereignty the ultimate source of legal authority and the Supreme Court the final interpreter of the law. The goal is also to limit the use of human rights laws to the most serious cases.
Several comments ought to be made to moderate these sayings. Indeed, UK courts have to “take into account” judgements of the European court but it doesn’t mean they are bound by them. It is the Parliament as a last resort who decides to change the law or not. In 2005, in the Hirst v. United Kingdom, the ECtHR ruled that a blanket ban on British prisoners’ voting rights was unlawful and contrary to ECHR. However, the British Parliament has refused to introduce new legislation and up to this day has never implemented the Court’s ruling. Moreover, Article 15 of the HRA makes alludes to the possibility to derogate from a Convention’s rights. This show, the Parliament has latitude when it comes to implementing the Court’s rulings into domestic law.
What’s new with Theresa May?
Now that Theresa May has been appointed Prime Minister, what will happen? In April, she stated that: “So regardless of the EU referendum, my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its court.” But two weeks ago, as she launched her Conservative leadership campaign she announced that she dropped the plan to pull the UK out of the ECHR because it has no Parliamentary majority and is too divisive. Indeed, she has a huge task awaiting now that she promised to “make Brexit a success”. Where does this leave the British Bill of Rights?
Four possible scenarios
In an interesting article, Dr. Katie Boyle explains the four possible outcomes of Brexit for human rights.
The first scenario would be the UK stays in the EU and keeps the HRA. This scenario is the least possible since the Theresa May’s commitment to honor the outcome of the referendum.
The second scenario would be to stay in the EU and repeal the HRA. The UK could stay member of the ECHR with which it would have the same relations as it had with it prior to the HRA: the Convention would be an international obligation without direct domestic application. The ECHR would not be irrelevant since the common law has developed the “treaty presumption”: the principle that requires domestic courts to interpret statutes in a manner consistent with international obligations.
The third scenario would be to leave the EU and leave the HRA. This would reduce the diversity of rights protected in domestic law and limit the possibilities to remedy to rights violation. Indeed, the CFR as a comprehensive human rights instruments that includes explicit provision for civil, political, economical, social and cultural rights and because of the supremacy principle of EU law offers extensive remedies available in case of conflict. This scenario seems to be the one we are heading to. However, it is unlikely that EU citizens in the UK and UK citizens in the EU would lose at once their free movement and associated citizenship rights. As it has been highlighted by Boyle, in the most likely case a transitional period would be introduced.
Finally, the fourth scenario would be to leave the EU and repeal the HRA. In this case, the UK wouldn’t be without any domestic human rights law. The UK has a long tradition of protecting rights even though it focuses more on civil and political rights. Furthermore, the UK legislation that has been enacted in domestic law to comply with EU law and ECtHR judgments will not become null and void; it would probably remain valid until the Parliament decides on something else.
Now that Mrs. May has confirmed that “Brexit means Brexit”, the last two scenarios are the most likely to turn up. Of course, the UK will not leave the EU overnight and UK citizens will not be deprived of their EU rights at once but if the new government is determined it could be a hard hit for UK citizens’ human rights.
A number of right-wing and xenophobic media depict human rights as a mechanisms that offer more protection to the persecutor than to the victims. The way the EU handles the migration crisis has been criticized for not complying with its own human rights standards. However, it is important to remind that human rights are not a left-wing preference but encompasses civil, political, economical and cultural aspects that cover individual and collective rights. The worker’s rights might be the most affected by the Brexit: British citizens wouldn’t be able to work unimpeded in other EU states. Important worker’s rights have emerged from the EU: for instance, the Working Time directive that guarantees a maximum of 48H work a week and four weeks paid holidays a year. Cameron already demanded an op-out for EU work laws, which indicates the party’s stance on worker’s rights and social welfare provisions. Replacing the Human Rights Act with a British Bill of Rights would also undermine the Good Friday Agreement and question the governance with Northern Ireland and Scotland.
This last months, the migration crisis has shown an EU not so keen on protecting human rights. As much as there could be improved in the functioning of the EU, leaving or repealing the Charter or the Convention would considerably weaken British citizens’ rights. Human rights should not be subject to political competition, it should not be waved as a failure from the opposition and it should not be constrained by sovereignty concerns. When racism and xenophobia are on the rise, it is a strong indicator that protection is more needed than a cutback on human rights.
For further information:
- The four scenarios post-Brexit:
- The Roles and Relationships between the two European Courts in Post-Lisbon EU Human Rights Protection:
- Theresa May’s case for withdrawal of the ECHR:
- Protecting Human Rights in the UK – Conservative Party manifesto:
- Pew Research Center Survey: