The next target in the project to “take back control”? Strasbourg and the Human Rights Act

Writing after the referendum in 2016, in the preface of his disturbingly timely On Fantasy Island: Britain, Europe and Human Rights, Conor Gearty, professor of human rights law, warned: “Now that the larger European entanglement has been successfully seen off, the time has come for finishing the unfinished business of human rights destruction.”

“The opponents of human rights are feeling emboldened by Brexit,” said Keir Starmer in 2017; “there are those that want Britain to retreat further from the obligations of … internationalism, including from the Council of Europe and the European Convention on Human Rights” (ECHR).

News this week that Britain will not accept continued commitment to the ECHR as an essential element in the future partnership with the EU, brings us one step closer to Gearty’s and Starmer’s ominous warnings becoming reality: the UK standing in near-complete isolation, as far as democratic countries go, in attempting to unravel its basic human rights infrastructure, putting at grave risk the international system for the protection of such rights in the process. The UK is currently the only country in the 47-member-strong Council of Europe—spanning the European continent, from Portugal, Ireland and Iceland in the west, to Armenia, Georgia, Ukraine and the Russian Federation in the east—that so openly threatens to withdraw from the key legal instrument bringing these contracting parties together.

The Sunday Telegraph more specifically reported—in the deeply Eurosceptic, tabloid-like tone that has become symptomatic of its coverage of Brexit—that the “PM will not let independent UK be bound by ‘abusive’ European human rights laws,” and that it “understands” that the government’s refusal to accept the proposed ECHR clauses in a post-Brexit trade agreement leave “the door open to break away from the treaty as soon as next year.”

At this point some background is required. The European Convention on Human Rights is not part of EU law (though it has long been attacked as a proxy for the EU). It is a separate international human rights instrument that was created by the Council of Europe. Winston Churchill raised the idea of a Council of Europe in 1946 and is still seen as one of its “founding fathers” and one of the “pioneers of Europe.” The Treaty that set up the statute of the Council was signed in London on 5th May 1949. The UK was among the first signatories. The Convention was designed to safeguard “fundamental freedoms which are the foundation of justice and peace in the world”; it aimed to stop the horrors of the two world wars of the 20^th century from ever occurring again. For Churchill, the creation of such a “Charter of Human Rights” was at the centre of a post-WWII “Movement for European Unity.” The UK played an influential role in the creation of the Convention; British lawyers were central to its drafting, and the UK was the first country to ratify it. The Convention is overseen by the European Court of Human Rights in Strasbourg and, crucially, was incorporated into UK law with the Human Rights Act 1998.

The Human Rights Act has long been a target of the Eurosceptic right. But the Conservatives’ position has, in recent years, mutated from direct political aggression (with the pledge to repeal the Act in the 2015 manifesto) to a strategy of creating ambiguity and chipping away at its democratic legitimacy. The 2017 manifesto contained a more nuanced commitment, to stay temporarily in the Convention until Brexit was concluded, while the 2019 manifesto promised to “update” the Act. Conservative threats to the HRA were always lurking in the Brexit waters. The Sunday Telegraph article simply highlights that the government is ready to take the next (final?) step, now that “Brexit is done.” A Conservative source, quoted in the article, reinforces fears: the EU demands are “inappropriate,” and “we will uphold human rights in our way,” the source said.

Though there is so far no official confirmation from the government that it is indeed on a collision course with the EU on this matter, the reports play into the worst fears of human rights scholars and organisations that have been tirelessly warning of a Brexit domino effect on protections in the UK.

And so perhaps it should come as no surprise that the UK and the EU reached a standoff on this point. It is worth digging into the detail nonetheless, to work out how we reached this impasse and where we might go next.

The new EU negotiating directives provide for the United Kingdom’s “continued commitment to respect the European Convention on Human Rights,” as “a basis for cooperation” and as part of the “core values and rights” that should inform the future relationship.

The directives make further reference to this continued commitment in the section that relates to law enforcement and judicial cooperation in criminal matters. In envisaging close cooperation, the directives stress as a necessary condition “adequate protection of personal data,” then go so far as provide for what has become known, in the context of the negotiations on the withdrawal agreement (WA), as a “guillotine clause,” providing for automatic termination of law enforcement cooperation and judicial cooperation in criminal matters, if the United Kingdom were to denounce the ECHR or were to “abrogate domestic law giving effect to the ECHR”; if it were to repeal the HRA, in other words, which is exactly what the Conservative Party has been threatening to do for many years now.

The UK document setting out the country’s approach to the future relationship, published two days after the EU decision (evidently reacting to it), counter-intuitively describes what the agreement should not specify (rather than taking a positive approach, identifying concrete mechanisms for human rights protection). “The agreement should not specify how the UK or the EU Member States should protect and enforce human rights and the rule of law within their own autonomous legal systems,” noted the document, and it “should not specify the reasons for invoking any suspension or termination mechanism” either; an obvious rejection of continued commitment to the ECHR as a requirement for cooperation.

Two observations quickly follow from the above. First of all, the UK rejection of a commitment to continue to abide by the Convention, supposedly to protect its post-Brexit status as an independent nation, is not only silly (some would say absurd, given the number of perfectly independent, modern European countries that subscribe to—and, in many cases, make a success of—the Convention), it is hypocritical too.

The UK government fully accepted these clauses as part of the negotiations on the WA. A commitment to continually adhere and give effect to the ECHR was included in the political declaration (both in the section on law enforcement and judicial cooperation and in the initial provisions of the declaration, as a core, shared, value) as well as the WA itself, in the Northern Ireland protocol, which provides that no diminution of rights set out in the Good Friday Agreement should result from withdrawal; these rights principally stem from the ECHR. Boris Johnson’s government signed up to these foundational documents. The prime minister led on this process, celebrating the culmination of the negotiations as a historic success, for his party and him personally.

Yet secondly, taking the EU’s approach at face value, one might perhaps argue that, in prescribing adherence specifically to the Convention, let alone in providing for a “guillotine clause,” the EU is adopting a rigid approach, that may be atypical of the approach it would normally take when negotiating similar trade agreements with third countries; the EU-Canada trade agreement, for instance, contains an important human rights clause, but no specific reference to the ECHR.

But, on the other hand, the practice of linking trade agreements with respect of human rights has gained significant ground in recent years, and in the case of the UK it simply makes sense, from a pragmatic point of view, to concentrate specifically on the ECHR. This is so for the simple reason that the EU is not oblivious to the Conservative threats to repeal the Human Rights Act and, potentially, even to withdraw from the ECHR. The ECHR has been absolutely central to the protection of human rights in the UK—including in relation to the protection of the right to privacy (personal data) and procedural rights (areas which the “guillotine clause” singles out as in particular need of ECHR protection)—in a country that does not even have a charter of constitutional rights, a modern Bill of Rights so to speak, as a fall-back position. Professor Francesca Klug’s reminder of the pre-HRA state of play—particularly during the Thatcherite years—is of particular relevance here: “if you had a government with a sufficient majority, there was nothing to stop it riding roughshod of what people thought” —mistakenly of course—“were invincible civil liberties.” In other words, because of all the above, the EU sees as realistic—and seeks, with its negotiating principles, to provide protection against—the threat of individuals in the UK not being able to invoke fundamental human rights (of ECHR standard) relevant to the post-Brexit relationship before UK courts in the future.

EU criminal law also increasingly requires security and judicial cooperation to be premised upon adherence to common human rights standards, with the ECHR a major point of reference. Future adherence to the ECHR makes perfect sense in that respect, if the UK genuinely envisages close cooperation in this area (which is what one would be right to assume, given how high up the agenda of the government criminal justice has supposedly been).

The Sunday Telegraph’s report runs parallel to the newspaper’s editorial that, quite bluntly, accuses Brussels of “deluded overreach,” warning the EU that it “must back off.” “The suggestion that the UK can’t be trusted to uphold human rights on its own is insulting and historically illiterate,” it proclaims, in obvious anger.

But that is the sad reality. The UK government cannot be trusted to uphold human rights on its own, for the very simple reason that it has aggressively been seeking, for many years now, to undermine the core system for the protection of human rights in the UK—the Human Rights Act, incorporating the European Convention. It has offered no viable alternative, just vague promises about an elusive UK Bill of Rights, backed up by statements steeped in a type of legal chauvinism that one would think had become obsolete, such as the UK being the country that “invented charters of rights with Magna Carta and the Bill of Rights 1688” (to quote the Sunday Telegraph editorial once again).

It is precisely because the UK has a rich and long human rights law tradition that it must avoid the catastrophic, self-harming, unprecedented error of repealing the Human Rights Act and withdrawing from the European Convention on Human Rights; an “act of epic historic selfishness,” in the words of barrister Adam Wagner, that would permanently blight the country’s international reputation and make its citizens vulnerable to governmental overreach, and the loss of individual rights we are currently taking for granted.