Brexit: implications for human rights in the UK

Brexit can be summed up as a right-wing populist-nationalist project implemented in the UK by the Conservative party to remove the UK from the EU. While Brexit occurred on 31 January 2020, when the Withdrawal Agreement came into force, EU regulations continued to apply in the UK, under an agreed transition period, until 31 December 2020. Negotiations are currently underway over a trade agreement that, if adopted, would come into force when the transition period ends. ¹This article was written before the trade agreement between the EU and the UK was reached on 24 December 2020. Following approval of the 1,246-page treaty by the UK and provisional approval prior to ratification by the EU, the treaty entered into provisional force on 1 January 2021 and the UK left the single market and customs union.

Proponents of Brexit have therefore thus far been successful in achieving their goals, it would seem. Moreover, despite the fact they do not have majority support in civil society ²For example, the Conservative party won a minority of votes at the December 2019 general election of 43.2%., today they control the UK government and Parliament and are supported by most mainstream media outlets. Yet even among supporters of Brexit, in the UK there is still no consensus about the kind of future relations the UK should have with the EU. In this context, the future implications of Brexit for human rights are uncertain. Moreover, to the extent that advocates of Brexit pay attention to this issue, they would probably like to argue that the future of human rights in the UK depends chiefly on choices they themselves have yet to make in terms of specific human-rights related government policies to be adopted after the transition period, and not on the future economic relationship between the UK and the EU.

In this, proponents of Brexit have either been recklessly misleading the public or show a profound misunderstanding of the nature of the EU. In their minds, there is no need for external trade relations to be related to other forms of domestic social regulation. Yet the key feature of the EU’s Single Market ³The EU single market is based on the four freedoms of goods, people, capital and services. is that it intrinsically combines economic efficiencies of scale ⁴Even after the UK’s departure, the EU will have a population of approximately 460m people. with a broad range of regulation applying to all Member States covering not only economic affairs but also social matters such as welfare provision, environmental protection and human rights. Access to this Single Market comes at the price of compliance with the regulatory framework – the Level Playing Field. The goal of Brexit – removing the UK from the EU’s regulatory framework while still having full access to the Single Market – is a non-starter. On human rights, crudely put, the more the UK reduces human rights protections, the less access it will have to the Single Market.

Philosophically, one might say, Brexit’s proponents have profoundly different views from those embodied in the EU. ⁵One is tempted to say they are based on very different conceptions of the nature and purpose of human civilisation. They base themselves on the nation-state, wrap themselves in nationalist ideology and argue that purely economic affairs can be unharnessed from non-economic matters – including human rights. Domestically, this has given Brexit’s proponents a ruthlessness that has proved a severe test for the UK’s democratic institutions and corresponding civil and political rights. ⁶International Covenant on Civil and Political Rights: https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx accessed 15 November 2020. They seized on the non-binding referendum – a vote widely criticised as flawed that provided a slim majority (52%-48%) in favour of ‘leaving’ the EU ⁷What ‘leaving’ meant in practical terms was not at that time defined. See https://en.wikipedia.org/wiki/2016_United_Kingdom_European_Union_membership_referendum – as a once and for all expression of public opinion constituting the ‘Will of the People.’ This claim was then used by Brexiters to attack any opposition, whether in public opinion, the media, Parliament, the courts or the devolved governments. The UK’s institutions proved ill-adapted to withstand the onslaught, once Brexiters were in government, not least because of the nature of the UK political system – that can be characterised as an ‘elective dictatorship’ – with no written constitution, no clear separation of powers, and consequently very few constraints on a government with a majority in the House of Commons after a general election. ⁸The unelected second chamber, the House of Lords, has relatively few powers. See https://www.hrw.org/news/2020/10/26/britains-democratic-fabric-being-eroded-boris-johnsons-government. The notion that the UK is in fact an ‘elective dictatorship’ goes back at least to 1976 when the idea was publicised by Lord Hailsham. See https://en.wikipedia.org/wiki/Elective_dictatorship. The country’s tradition of parliamentary sovereignty in practice strengthens the executive (which makes laws through its Commons majority) and weakens the judiciary (which cannot rely on an overarching constitution to hold government in check). Last autumn the UK government suspended Parliament in an effort to limit discussion and scrutiny of Brexit policy (the Supreme Court subsequently ruled the suspension unlawful). See https://www.independent.co.uk/news/uk/politics/supreme-court-decision-ruling-boris-johnson-suspension-prorogue-brexit-latest-today-a9117931.html. The executive has also taken powers to change Brexit-related laws through secondary legislation. A similar process has been seen with regard to the way the government has taken powers to tackle the coronavirus pandemic. See https://www.independent.co.uk/topic/Coronavirus. The government has also set up a body to review and potentially weaken current procedures by which government policy is subject to judicial oversight. See https://www.gov.uk/government/news/government-launches-independent-panel-to-look-at-judicial-review. Furthermore, as seen once again in the December 2019 elections, the ‘first past the post’ electoral system works in favour of the larger political parties, and especially the largest. ⁹The December 2019 election delivered an 80-seat majority for the Conservative party on the basis of 43.6% of the vote. See https://en.wikipedia.org/wiki/2019_United_Kingdom_general_election In such a system, for a government with a majority in the House of Commons, major constitutional change such as Brexit can be as easy to achieve as minor legislative amendments. ¹⁰Today, the House of Commons has no say on the objectives or outcome of the trade deal being negotiated with the EU. See https://www.theguardian.com/politics/2019/dec/20/brexit-withdrawal-bill-whats-new-and-whats-different Brexit has also had a disruptive impact on the relatively new institutions of devolution. ¹¹In Scotland and Northern Ireland majorities voted against Brexit in the 2016 referendum. Indeed, Brexit threatens the very fabric of the UK state. In Scotland, support for independence has strengthened, while in Ireland, particularly if the UK were to fail to uphold the Good Friday Agreement which brought peace and ensured no ‘hard border’ between the Republic and Northern Ireland, support for reunification might increase. ¹²See https://www.gov.uk/government/publications/the-belfast-agreement;https://ukandeu.ac.uk/good-friday-agreement-why-it-matters-in-brexit/

Any consideration of the implications of Brexit for human rights must also take into account the apparent success of right-wing print and online media that predominate in the UK and were a major factor in securing the slim ‘leave’ majority in the 2016 referendum. These media outlets had for decades attacked the EU and promoted attitudes permeated by xenophobia and racism and hostile to liberal values and human rights. ¹³For example, these media misrepresented human rights mechanisms as primarily protecting criminals, terrorists and asylum seekers. See https://www.theguardian.com/law/2013/oct/14/european-court-human-rights-attacks-uk-newspapers Since the referendum, pro-Brexit media have furthered a deterioration in political discourse, often attacking their ideological adversaries as ‘enemies of the people,’ ‘unpatriotic’ and ‘saboteurs,’ etc. ¹⁴See https://www.express.co.uk/news/politics/1209213/election-news-brexit-latest-Dominic-Cummings-boris-johnson-lib-dems-steve-bray. Parliament has been accused of ‘blocking’ the Will of the People. See https://www.bbc.co.uk/news/av/uk-politics-44457827.  Supreme Court judges have been attacked as ‘Enemies of the People.’ See https://en.wikipedia.org/wiki/Enemies_of_the_People_(headline)  The UK government has itself at times adopted similar emotive language against groups it considers its opponents in politics, the media, the courts or elsewhere. There has also been an increase in incidents of racism and xenophobia in the UK, often violent in nature. Media hostility to the protection of human rights will undoubtedly continue to have a negative impact on human rights in the UK.

The general direction of government policies in recent years is also relevant to the future of human rights in a country that, on the international stage, has traditionally liked to assume the stance of a champion of human rights. Yet, even before Brexit, human rights in the UK had deteriorated in many areas, including those that depend on government funding and were impacted by policies of austerity adopted since the 2008 economic crash, ¹⁵There has been much progressive legislation in recent decades, such as in LGBT rights. See https://www.equalityhumanrights.com/en/what-are-human-rights/history-human-rights-britain those related to law enforcement and security issues ¹⁶Including restrictive counter-terrorism legislation. See https://www.theguardian.com/politics/2020/may/20/uk-governments-new-counter-terrorism-bill-the-key-measures; https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx. On redress regarding allegations of torture against UK military services see https://justice.org.uk/torture-uk-law/. See also: https://www.bbc.co.uk/news/uk-55247033. and those relating to discrimination. ¹⁷In particular against women, immigrants, refugees and their families. See https://blogs.lse.ac.uk/wps/2019/07/16/the-challenge-of-implementing-the-cedaw-convention-in-the-uk/; https://www.amnesty.org/en/countries/europe-and-central-asia/united-kingdom/report-united-kingdom; https://www.hrw.org/news/2020/09/11/uks-bid-brexit-all-costs-will-damage-human-rights In all these areas, the continuation post-Brexit of a radical right-wing government in office, combined with the impact of the projected economic down-turn on government spending, would probably result in a further deterioration of human rights.

Brexit itself has introduced new human rights concerns, not least those related to the status of EU citizens who had no vote in the referendum yet have had to face its most severe consequences. ¹⁸It should not be forgotten that as a result of Brexit all UK citizens lost their EU citizenship and the ‘four freedoms’ provided by the Single Market, in particular freedom of movement, regardless of personal choice. Until the adoption of the Withdrawal Agreement, the lives of nearly four million EU citizens living in the UK were cast into limbo, as well as over one million UK citizens living in the rest of the EU. ¹⁹See https://ec.europa.eu/info/european-union-and-united-kingdom-forging-new-partnership/eu-uk-withdrawal-agreement/implementing-withdrawal-agreement/citizens-rights_en. There has been a widely held view that the UK government sought to use the precarious position of EU citizens living in the UK as a ‘bargaining chip’ in the negotiations with the EU. See https://www.lawscot.org.uk/news-and-events/legal-news/eu-nationals-rights-not-brexit-bargaining-chip-report-warns/ Even now, many consider the provisions unsatisfactory given that EU, EEA or Swiss citizens will have to apply to the government’s EU Settlement Scheme for the ‘right’ to be able to continue living in the UK after 30 June 2021. ²⁰Failure to apply to the scheme could lead to deportation. See https://www.gov.uk/settled-status-eu-citizens-families

The government’s intention to reduce human rights protections in the UK was seen in its early decision to leave the EU’s Charter of Fundamental Rights. ²¹This was despite an early UK government pledge to preserve existing EU law post-Brexit ‘wherever possible.’ See https://www.equalityhumanrights.com/en/our-human-rights-work/what-does-brexit-mean-equality-and-human-rights-uk  This, among other things, will mean the loss of a general right to non-discrimination, protection of a child’s best interests and the right to human dignity. See https://www.equalityhumanrights.com/en/what-are-human-rights/how-are-your-rights-protected/what-charter-fundamental-rights-european-union. Back in 2018 a group of leading civil rights organisations in the UK stated, ‘Losing [the Charter] creates a human rights hole because the charter provides some rights and judicial remedies that have no clear equivalents in UK law.’ See https://www.theguardian.com/law/2018/jan/13/brexit-eu-human-rights-act-european-charter. The 2019 revisions to the Political Declaration also tended to weaken its wording. For example, by replacing the word ‘adequate’ with ‘appropriate’ with regard to labour standards, while the level playing field mechanism was moved from the legally-binding Withdrawal Agreement to the Political Declaration. See https://en.wikipedia.org/wiki/Brexit_withdrawal_agreement#Citizens’_rights:_general_provisions However, the notion of a Level Playing Field that included human rights was already present in the non-binding Political Declaration that accompanied the Withdrawal Agreement. This document stated that the future relationship between the EU and the UK ‘should incorporate the United Kingdom’s continued commitment to respect the framework of the European Convention on Human Rights’ (ECHR). This focused attention on the EU’s concern that the UK’s Human Rights Act (HRA), that incorporates the ECHR into domestic UK law and is the lynchpin of human rights protection in the UK, should remain UK law. ²²Adopted in 1998 under the Labour government of Tony Blair and in force since 2000, the HRA obliges British courts to take into consideration the Convention and the case law of the European Court of Human Rights. Furthermore, all public bodies, and those carrying out public functions, are required to respect and protect Convention rights; and, in addition, if a court cannot interpret laws in a manner compatible with the Convention, it informs government so that an appropriate amendment to the legislation can be adopted. See https://www.equalityhumanrights.com/en/what-are-human-rights/history-human-rights-britain and https://www.legislation.gov.uk/ukpga/1998/42/contents Yet, since its inception, the HRA has been the target of attack by the very right-wing politicians and media that supported Brexit, ²³Some, for example then Home Secretary Theresa May in 2016, have called for the UK to withdraw from the ECHR altogether: https://www.theguardian.com/politics/2016/apr/25/uk-must-leave-european-convention-on-human-rights-theresa-may-eu-referendum. Others have urged that the HRA be replaced by a British Bill of Rights (see the 2015 Conservative party election manifesto, which also promised the Brexit referendum: http://ucrel.lancs.ac.uk/wmatrix/ukmanifestos2015/localpdf/Conservatives.pdf). Since then, the government has tended to prevaricate. In 2017 the Conservative party manifesto committed to adhere to the Convention for the duration of that parliament. See https://s3.eu-west-2.amazonaws.com/conservative-party-manifestos/Forward+Together+-+Our+Plan+for+a+Stronger+Britain+and+a+More+Prosperous….pdf. In 2019 the Conservative party’s election manifesto merely promise to ‘update’ the HRA, but avoided any detail. and while today the UK government talks of revising, rather than repealing, the HRA, this does not conceal the serious nature of the changes proposed. ²⁴For example, restricting the HRA’s application to cases after 2000, making it inapplicable to British forces overseas. See https://www.theguardian.com/uk-news/2016/oct/03/plan-uk-military-opt-out-european-convention-human-rights; https://www.theguardian.com/commentisfree/2020/sep/20/overseas-operations-bill-uk-government-bend-rules-torture-soldiers. Curbing its use by migrants and asylum seekers and introducing new legislation including anti-terrorism laws and measures to facilitate deportations despite human rights concerns. See https://www.theguardian.com/law/2020/sep/13/uk-government-plans-to-remove-key-human-rights-protections. Liberty, a leading UK human rights organisation, has said, the government’s promise to ‘update’ the HRA ‘will weaken our rights.’ See https://www.libertyhumanrights.org.uk/fundamental/human-rights-act/

Once talks between the UK and the EU over the future relationship began in earnest, the human rights implications of Brexit became specific matters for negotiation because of the Level Playing Field requirement for economic access to the Single Market. ²⁵This, of course, is not to underestimate the EU’s commitment to human rights in principle, as well as such in terms of such vital matters as the need for equivalence in data protection standards, security relations and the requirement to comply with the Good Friday Agreement. See https://ec.europa.eu/info/european-union-and-united-kingdom-forging-new-partnership/eu-uk-withdrawal-agreement_en

At this stage the failure of the advocates of Brexit to take fully into account the nature of the EU and its Single Market became clearer. Initially, the UK resisted the EU’s insistence on future adherence to the ECHR. ²⁶See https://www.independent.co.uk/news/uk/politics/brexit-uk-trade-talks-safeguards-government-human-rights-act-gove-a9535056.html. The EU has also expressed concern about whether the UK’s data laws will be in line with the EU’s general data protection regulation (GDPR) after 1 January 2021. However, in the face of the potential serious economic consequences of a ‘no deal’ scenario, the UK subsequently announced it was prepared to pledge to maintain the HRA. Negotiations remain fraught, however, as illustrated by the UK government’s increasingly regular bravado pronouncements that it is ready for a ‘no deal’ along with the recent introduction, and then withdrawal, of a bill to breach international law and override the very Withdrawal Agreement it so recently agreed. ²⁷See https://www.theguardian.com/politics/2020/sep/11/brexit-override-plan-would-breach-vienna-convention-qc-says. The foreign minister of Ireland, Simon Coveney, has said that if adopted such a law would make the Withdrawal Agreement impossible. See https://www.politicshome.com/news/article/simon-coveney-no-deal-brexit-internal-market-bill-fishing It seems that Brexit’s proponents had not expected the Level Playing Field – including human rights – would prove such a fundamental issue in reaching a deal about trade with the EU.

Post-Brexit, then, human rights in the UK will face major challenges, not least because of government hostility to many aspects of human rights protection, a decline in democratic institutions, a prevailing media atmosphere of intolerance and hostility to human rights, reductions in government spending and a declining economy. ²⁸The post-Brexit decline in the UK economy will of course be severely exacerbated by the crash resulting from the COVID-19 pandemic. Two factors may mitigate these negative developments. One is that a likely failure of the UK economy to deliver the promised benefits of Brexit may weaken the persuasive power of Brexit ideology and bring about political change in the country. However, of far greater immediate and long-term importance will be the need for a close economic partnership with the EU that obliges the UK to comply with the Level Playing Field rules and consequently maintain human rights standards. Paradoxically, post-Brexit, human rights in the UK may depend more than ever on its relationship with the EU.

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