Having at last formally withdrawn from the European Union, the UK is slowly starting to adjust to the changes brought about by this constitutionally significant event. However, the legal and political fallout is far from finished, and there are still areas which the government and future parliaments will have to address. One instance is the Human Rights Act 1998, a crucial piece of legislation designed to protect human rights.
What is the HRA?
The Human Rights Act 1998 (HRA) is the main piece of legislation upholding human rights in the UK. It was introduced to implement the European Convention on Human Rights (ECHR) into domestic law, and the HRA allows individuals to maintain these rights in a court of law. However, it is important to note that membership to the ECHR is independent from the EU. So how can Brexit affect the HRA? Simply put, the UK’s decision to stop the EU Charter of Fundamental Rights (‘the Charter’) post-Brexit.
The significance of the Charter
Unlike the ECHR, the Charter is part of EU law, which the UK is no longer subject to. The Charter is an accumulation of the fundamental human rights of all EU citizens, including rights listed in the ECHR. The EU Withdrawal Act 2018 which facilitated the UK’s exit from the EU, states that the Charter will no longer be part of domestic law after exit day (see s.5 (5)).However, when May’s government passed this Act in Parliament, assurances were given that fundamental rights would not be lost as a result.
The HRA, political parties and a troubled history
The commitment to repeal the HRA goes as far back as the Conservatives’ manifesto of 2006, which later became the infamous Brexit referendum. The language framing such proposed changes was ‘sovereignty’ for the UK. Indeed, the Conservatives’ 2019 manifesto proposed to ‘update administrative law’ so as to ensure a ‘proper balance’ between protecting individual rights, effective governance and ‘vital’ national security. Conversely, the Labour, Lib Dems and SNP manifestos wanted to leave the HRA untouched.
However, the HRA did not feature heavily in the Brexit debate, and instead the Conservatives designated the renegotiation of the HRA as a matter to be discussed after Brexit. The Brexit Withdrawal Agreement of 2018 had at its heart an agreement that the UK would continue to cooperate with the European Court of Human Rights (ECtHR) and thus the ECHR beyond Brexit. Hence, the Brexit process at first appeared to have ‘locked in the status quo surrounding UK’s relationship with the ECHR’.
Although Brexit agreements make it more cumbersome for the UK to withdraw from the ECHR, they do not make it impossible. Moreover, there are other laws that the UK could implement to limit the scope of the ECHR. For example, passing a law which would see ECtHR judgments as merely advisory, and therefore change the way they can be applied in UK courts.
Implications of ratifying the HRA
A post-Brexit attempt at diluting human rights enshrined in law would undermine the Good Friday Agreement with Northern Ireland. Former Court of Appeal judge Sir Peter Gross is leading the independent examination of how the Act is being interpreted in UK courts. Some scholars see the current review of the HRA as ‘neither welcome nor timely’, but rather as a way of ‘diminishing’ protections offered to Northern Ireland by the Act. With Northern Ireland in the UK, and with UK outside the EU, it is understandable that NI nationals have fears over decision to change human rights given by the EU through the HRA.
Section 6 of the Good Friday Agreement protects and advances human rights, which would be altered, should British parliament choose to ratify the HRA. The Agreement promises the ‘effective delivery of ECHR rights in Northern Ireland domestic law’, meaning the HRA also has a constitutional significance for the UK. And, with the current debate in NI being about the development of human rights, it is no surprise that any ratification of the HRA will likely be unwanted. Finally, some have also warned of a potential political fallout from the USA, should the Good Friday Agreement be tampered with, as it holds particular significance to President Joe Biden.
So, what comes next?
Nothing official regarding the ratification of the HRA has yet been agreed. Support for human rights in the abstract is strong. In a devolved Western state like the UK, human rights, especially in the current pandemic, are a popular topic of conversation. However, one of the key aspects of the Brexit campaigns was to “take back control”, and to stop the EU from having the ability to proclaim what the UK can and cannot do. It was not too long ago that the UK’s Chief Negotiator, David Frost, argued against the ECHR and HRA as an infringement on sovereignty. And, with previous claims that the Prime Minister, Boris Johnson, was looking at weaking the HRA to prevent migrants from using it to avoid deportation, the future of human rights in the UK is unclear.