This week, I was privileged to have been invited to speak at the London School of Economics on the subject of human rights and Brexit, in particular the possibilities of a British Bill of Rights.
I should stress from the outset that my own belief is that talk of a British Bill of Rights is deeply flawed, for two reasons. First, because having a stand-alone document in a fluid constitution such as ours means that our human rights regime can very easily be changed via the will of Parliament, in the classic Diceyan concept of sovereignty, with no reference to external courts via which to ensure consistency in the application of the law. Second, any British Bill would have as basis many of the same rights already enumerated, the only difference being it would be left to our courts entirely to interpret the legislation.
While I see the appeal of this from a purely nationalistic standpoint, the external human rights jurisprudence of the Court of Justice of the European Union and the European Court of Human Rights have proved very useful in standardising a form of human rights for citizens across Europe, and in policing the boundaries between our executive, legislature and judiciary. With our voting system, removing the UK from international human rights organisations and the EU removes an absolutely vital check on Parliament, as a government with a majority could simply do away with human rights legislation altogether.
However, focussing specifically on a Brexit, we need to first of all make a distinction between the legal regimes which exist in Europe, which has affected all of our post-war human rights court rulings.
We are members of the 47-state Council of Europe, the organisation of which the European Court of Human Rights forms part, and have been since 1949. It is from this organisation that we take the Convention on Human Rights, which led the 1997 Labour government to ‘domesticate’ it by putting the provisions of the Convention into national legislation, in the form of the Human Rights Act. We are discussing the situation of human rights post-Brexit, but a Brexit would not mean leaving the Council of Europe. The notion of moving to a British Bill of Rights, instead of the Human Rights Act based on the European Convention on Human Rights, would most likely require us to leave the Council of Europe. Incidentally, this means we could not be a member of the European Union anyway, as accession to the Convention is a requirement of EU membership.
The other source of external human rights has been the EU. EU jurisprudence from the 1970s has been important in recognising general norms of human rights and making them binding, recognising the authority of the Convention, and indeed protecting the respective constitutional traditions of the Member States, right up until the adoption of the EU Charter of Fundamental.
It has been argued that these systems effectively function in a complementary manner. Individuals are free to make an application directly to the Court of Human Rights in Strasbourg on the basis of national law. By contrast, the Court of Justice of the EU only has competence where there is a cross-border element or where the matter falls under the EU’s Charter of Fundamental Rights, Article 51 of which states that the Charter is to apply to EU institutions and agencies and only to the Member States when they are implementing EU law.
However, although the Court of Human Rights has a wider jurisdiction, its own jurisprudence states that it cannot strike down domestic law which is incompatible with the Convention. This is the biggest point of departure with the European Court of Justice, which may overrule national law to the contrary.
The political reality is of course that Conservatives have already mooted a reform, if not a total scrapping, of the Human Rights Act, however it is essential that we distinguish between the EU’s fundamental rights acquis and that of the Council of Europe.
The real worry is the effect of EU law no longer applying in the UK.
This is particularly the case in reference to regulations, which are directly applicable and directly effective in the Member States as soon as they are law. Therefore, on exit, these should logically cease to be binding on us as they do not form part of a separate, British law.
While directives are by definition incorporated into national law by a national implementing measure, the problem here is that the European legislation can serve as an aid to the national judge in interpretation of the law. Additionally, where there is ambiguity, or indeed disagreement between courts in the national order.
The logical conclusion therefore is that either we rescind the entire EU legislative framework which is relevant to the UK, or we have to ‘nationalise’ existing EU law, a process which could take a very long time, and risks being held hostage to the views of whichever party is in government as to the final content.
The risk therefore is that the UK would be left with little or no enforceable international rights protection with only the UK regime in force, arguably much like the insular hierarchical reading which can be given to the American constitutional structure, with the wide-ranging notion of the British constitution taking precedence over treaties and all secondary law. This creates a real risk of the government of the day being able to infringe greatly on our rights, with no appeal for citizens apart from to the Supreme Court, which constitutionally has no capacity to overrule the British Parliament.
From this point of view, and the millions of people who benefit every day in exercising their freedoms to join a trade union, practise a religion or none, give their opinion in public, question and criticise government and opposition, not suffer discrimination, and not be arrested arbitrarily, the case to remain stronger, and freer, in Europe is clear.