By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School).
At this stage, the only firm conclusion which can be drawn about the human rights implications of Brexit is that they are likely to be uncertain for many years to come – for the UK, for the soon-to-be 27-member European Union, and for the 47-member Council of Europe, the parent body of the European Convention on Human Rights and the European Court of Human Rights, the so-called ‘Strasbourg institutions’. Taking each of these in turn, let us consider the UK first.
The human rights implications of Brexit are unlikely to be immediate or direct for the UK and their significance is also difficult to predict. Those UK human rights laws which do not derive from the EU will not be affected. But this is not a straightforward distinction. The UK will also remain formally subject to EU law, including in the human rights field, as long as it remains a member of the EU, ie for the two years or more it is expected to take for the divorce to be finalized. But it is unlikely that, in this period, any new legislation or fresh rulings of the European Court of Justice (the generic term for the EU’s judicial institutions), would or could be enforced against the UK’s will. But, thereafter, the status of EU law in UK law will be difficult to determine. For one thing it may depend upon whether or not, post-Brexit, the UK remains a member of the single market in common with non-EU states, Iceland, Liechtenstein, Norway and Switzerland. If so, it will continue to be subject to some EU rules, in all probability including those concerning free movement of people, which arguably have a human rights dimension. However, whether or not this is the case, once the UK’s membership of the EU finally terminates, the UK will no longer have to comply with the human rights obligations enshrined in EU Treaties. But it is not clear which, if any, other EU human rights laws – including those applying in such fields as employment, migration, equality, children, data protection and the environment – would remain valid unless and until repealed by Act of Parliament, or whether they would lapse unless further UK legislation were passed to retain them.
The implications of Brexit for the UK’s membership of the Council of Europe and the European Convention on Human Rights are also unclear. Formally, the decision will have no impact whatever, not least because, by leaving the EU, the UK would merely join the existing nineteen non-EU Council of Europe states. However, many who campaigned and voted for Brexit are also hostile to the European Convention on Human Rights, others fail to realise that departing from the EU will leave the UK’s European Convention commitments intact, and scepticism about the European Convention is not limited to the Brexit brigade. For example, Home Secretary Teresa May, one of the frontrunners in the Conservative leadership contest who supported Remain, advocated the UK’s withdrawal from the European Convention (call it ‘ECxit’) before the referendum vote, in spite of advice that membership of the Strasbourg system is effectively a condition of membership of the EU. However, in her speech launching her bid for the leadership of the Conservative party she announced that, in the absence of a Commons majority for this proposal, she’d changed her mind. Whether or not the UK remains a party to the European Convention on Human Rights will, therefore, depend upon the outcome of the contests for the leadership of the Conservative party and UK premiership, any subsequent general election, and the priority then assigned to ECxit compared with more urgent EU-related matters. But as things stand, the chances of ECxit – much less technically challenging than leaving the EU with, for example, a referendum highly unlikely – seem to have diminished in the wake of Brexit. However, even if ECxit should occur, Convention rights are likely to remain a feature of British law since the Conservative party – the only UK-wide political party contemplating a reconfiguration of the national human rights landscape – envisages their reproduction, subject to reduced judicial enforcement, in a British Bill of Rights intended to replace the Human Rights Act which domesticated the European Convention at the beginning of the 21st century.
Any implications Brexit may have for the EU’s own human rights activities are also unlikely to be immediate or direct. While the referendum result has already strengthened demands for similar ‘in/out’ referenda in other member states, including France, the Netherlands, Sweden, Italy, Austria and Denmark – potentially threatening all the EU’s activities including human rights – it has also simultaneously reduced the chances that any government will be willing to follow the British precedent. And, as things currently stand, the prospect of a Eurosceptic party gaining power in any EU state is remote. Arguably, in order to avoid stoking Euroscepticism, the European Council and Commission might now think twice before embarking upon any controversial human rights legislation. But the European Court of Justice is not guided by such considerations and is likely to continue to adjudicate as it sees fit. However, in spite of these considerations, the outcome of the UK referendum has nevertheless weakened the already tarnished legitimacy and authority of the EU; hardly positive for any of its activities including human rights.
Finally, Brexit has no formal or immediate implications for the Council of Europe, forty per cent of whose member states, as already intimated, do not belong to the EU. However, since the UK is one of the oldest democracies in the world, together with France and the US is the birthplace of the human rights ideal, and, by contrast with the EU, is a founding member of the Council of Europe, the legitimacy and authority of the Strasbourg institutions, also under strain, would be significantly damaged both internally and wider afield should the vote to leave the EU sweep the UK out of them too.