The Government continues to treat European human rights, incorporated by the Human Rights Act (HRA) into UK law, like supermarket products with a use-by date: we can enjoy them for now, but the government reserves the right to take them away after Brexit.
The Conservatives’ 2017 election manifesto committed to not repealing or replacing the HRA, but only ‘while the process of Brexit is underway’.
It pledged to ‘consider our human rights legal framework when the process of leaving the EU concludes’, and that the UK would ‘remain signatories to the European Convention on Human Rights for the duration of [this] Parliament’. Put differently, we can exercise our rights until the Brexit use-by date but, perhaps, not after.
Ministry of Justice (MoJ) correspondence with the House of Lords’ EU Justice Sub-Committee has now provided confirmation that this remains the position of the government. ‘It is right that we wait until the process of leaving the EU concludes before considering the matter further in the full knowledge of the new constitutional landscape’, the correspondence revealed.
The sub-committee had sought clarification about a change in wording between the draft and final versions of the Political Declaration regarding the UK’s future relationship with the European Convention on Human Rights (ECHR).
The summary draft of the Political Declaration originally indicated that the relationship would be underpinned by a ‘reaffirmation of the United Kingdom’s commitment to the ECHR’, but the final document replaced this with the more nuanced formulation that the UK would merely agree ‘to respect the framework of the ECHR.’
In his reply to the Committee, Edward Argar MP, Under-Secretary of State at the Ministry of Justice, offered no explanation about the change in wording, and simply underlined that it did not represent a change in the UK’s position on the ECHR.
The Lords’ Committee has rightly expressed concern about the future of the HRA, the twentieth anniversary of which we have, quite ironically, just celebrated.
The Committee insightfully asked whether, in view of the above, the government intends to break the formal link between the UK courts and the European Court of Human Rights after Brexit. This threat was central to the Conservatives’ 2015 election manifesto, and seems to underpin the more nuanced approach adopted in 2017.
This spill-over of the government’s anti-European narrative against the HRA and ECHR will, of course, not come as a surprise to many: the Act and Convention have long been attacked as proxies for the EU, and Brexiteers have always treated the two as common, indistinguishable, enemies in the fight of reclaiming ‘sovereignty’ from Europe.
What is surprising, however, is the increasing tendency for double-talk. The government stresses its commitment to staying in the Convention after Brexit, but also to revisiting how (and whether) Convention rights would apply in UK law.
It takes pride in the fact that the UK is ‘a founding member of the Council of Europe and one of the first countries to ratify the Convention’, yet insists that the new post-Brexit constitutional realities require further consideration of the matter.
One day the government commits to the Convention (in the Brexit negotiations), the following day it commits to just respecting its framework.
When it speaks to Europe, it claims (or pretends?) to be enthusiastic about human rights; when it speaks to UK audiences, it has doubts about, and commits to re-examining, the future of European human rights in UK law.
If such oxymoronic rhetoric is not the result of a simple lack of coordinated thinking (an unintended “cacophony” of views from governmental experts and ministers intrinsically unenthusiastic about human rights), it can only be explained as a cynical attempt to undermine the effect of the ECHR in the UK, by preparing the ground for an attack upon its constitutional foundation.
Whichever explanation may turn out to be correct, the fact is we are currently left with a myopic vision of the future of human rights in the UK.
It’s interesting to note, in this respect, that some commentators have, justifiably, interpreted the ECHR clause in the Political Declaration as signalling that Brexit may have ‘ended up saving the Human Rights Act’ and guaranteeing the Convention’s continued effect in the UK (in the sense that the Political Declaration was making respect of the ECHR a precondition for a deal on the future relationship with the EU).
It has not taken long for the government to prove this hypothesis wrong. The MoJ’s response to the Lords’ EU Committee speaks for itself; in view of the government’s startling admission that it still considers repealing the HRA, the ECHR clause in the Political Declaration now seems as empty rhetoric.
Many commentators – it must be added – were sceptical that a breakthrough on the HRA had been achieved with the Political Declaration anyway. Writing for The Times, Jonathan Cooper had found the text of the declaration ‘hardly a reassuring commitment’.
His contextual analysis – starting with David Cameron’s ‘anti-European dogma’ and ending with Theresa May’s ‘entrenched […] anti-convention credentials’ – lead him to the striking conclusion that ‘[a] British Bill of Rights is written in invisible ink into this provision [of the Political Declaration]’.
The simple reference to respecting the framework of the Convention meant that the ‘Human Rights Act [could] be repealed, and the UK [could] re-calibrate its relationship with the court and the convention without falling foul of the declaration’.
The government’s position on the HRA has mutated from direct political aggression to a strategy of creating ambiguity and chipping away at the Act’s democratic legitimacy (in alluding to a new constitutional landscape which, for some reason, would require reconsidering the Act’s democratic foundation).
The government seems to be playing the waiting game until the right moment comes to repeal the Act, once Brexit is out of the way.
All this means that irrespective of how immediate one may perceive the threat to the HRA to be, the time for action is now. Even in the optimistic scenario that Brexit ends up saving the HRA, it will only be by accident; the result of an EU-imposed, last minute backstop to the Withdrawal Agreement.
At an ideological level, nothing will have changed, and the HRA will continue to be vulnerable to the populist attacks that have fuelled anti-European sentiment in the first place and brought us to where we find ourselves with Brexit.
The UK government has attached a ‘use-by date’ to our rights. So we should not just enjoy them while we have them. We should do our best to defend them against these threats. We simply cannot afford to be complacent, or ambiguous, about their future.
By Dimitrios Giannoulopoulos, inaugural professor in law at Goldsmiths University of London, and director of the Britain in Europe think-tank and Knowing Our Rights research project.