How might Brexit affect human rights in the UK?

The main piece of legislation to uphold human rights in the UK is the Human Rights Act 1998 (HRA). The act gives effect to the European Convention on Human Rights (ECHR) in UK law.

Although there is no direct connection between the UK’s membership of the ECHR and membership of the EU, Brexit could affect the protection of human rights in the UK. This is due to the decision to stop the EU Charter of Fundamental Rights having effect after the UK leaves the EU.

What is the European Convention on Human Rights?

The ECHR is an international treaty the UK signed in 1950. States that signed up committed to upholding certain fundamental rights, such as the right to life, the right to a fair trial, and the right to freedom of expression. The HRA enables people to bring cases in UK courts in order to uphold their ECHR rights.

Brexit will have no direct impact on the UK’s obligations under the ECHR. However, the UK’s commitment to the ECHR may still have a role to play in determining the future relationship with the EU.

Plans to replace or amend the Human Rights Act

It has been a long-standing Conservative Party policy to repeal and replace the HRA. This was obstructed by the Liberal Democrats during the Coalition Government of 2010-2015, and interrupted by the result of the 2016 EU referendum.

The Conservatives’ 2017 manifesto stated the party would not replace or repeal the HRA while the process of Brexit was underway, but would consider “our human rights legal framework” once the UK had left the EU. The 2019 manifesto proposed to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.” It also committed to setting up within a year a Constitution, Democracy and Rights Commission to make proposals.

The Labour, Liberal Democrat, and SNP manifestos committed to retaining the HRA.

What is the European Charter of Fundamental Rights?

In contrast to the ECHR, the European Charter of Fundamental Rights (‘the Charter’) is part of EU law. Under the European Union (Withdrawal) Act 2018 it will cease to apply when the UK leaves the EU. The May Government argued this would not impact human rights protections in the UK. This is because the Charter did not create new rights, but codified rights and principles that already existed in EU law, and these would continue to apply as ‘retained EU law’ in the UK.

The Charter brings together the fundamental rights of everyone living in the EU, including the rights protected by the ECHR, the constitutional traditions of the Member States, and the rights contained in other international conventions to which the EU or its Member States are parties.

The EU (Withdrawal) Act 2018 states that the Charter is not part of domestic law on or after exit day. When the bill was going through Parliament, the Government gave assurances there would be no reduction in rights as a result. It published a ‘right by right analysis’ which sought to identify other sources for the rights conferred by the Charter.

Commentators at the time, including the Joint Committee on Human Rights and the Equality and Human Rights Commission, questioned this assertion. It was noted that the Charter enables individuals to bring legal action to strike down domestic legislation that is incompatible with a fundamental right, which is not possible under the ECHR.

Further, although the Charter reaffirmed rights which existed at the time it came into force, its application has led to the development of new rights, for example the ‘right to be forgotten’ which derived from existing rights to private life and personal data.

The role of human rights in the UK’s future relationship with the EU

The EU has committed to respecting and promoting human rights and democracy through its external action. It is common for human rights to be incorporated into bilateral trade agreements with the EU by way of an ‘essential elements’ human rights clause that enables one party to take appropriate action in the case of serious breaches by the other party.

The revised Political Declaration setting out the framework for the future relationship between the EU and the UK, of October 2019, sets out “core values and rights” as a basis for cooperation. It states that the future relationship should incorporate the UK’s continued commitment to “respect the framework” of the ECHR.

Human rights are likely to play a particularly significant role in any future agreement on security cooperation. Cooperation within the EU on criminal justice and security is based on the principle of ‘mutual recognition’ of decisions taken by Member States, underpinned by trust in the integrity of those decisions and the treatment of individuals. This trust is largely founded on adherence to ECHR standards.

If future security cooperation is to come anywhere near current levels of cooperation, it is likely that the UK will need to commit to ongoing adherence to these standards. The Political Declaration proposes a “broad, comprehensive and balanced security partnership” underpinned by continued adherence to the ECHR.

Further reading

• Human Rights Protections in International Agreements, Joint Committee on Human Rights
• The human rights implications of Brexit, Joint Committee on Human Rights