How will our rights be affected post Brexit?*
UPDATE: 26 April
An article in the current edition of Prospect by Vernon Bogdanor entitled ‘Brexit will erase your rights’ (May 2018) discusses
in detail the effects of leaving the jurisdiction of the European Court, the avowed government policy. One of the important effects is that the ability of judges to disallow legislation which conflicts with the EU Charter of Fundamental Rights will no longer be possible. Bogdanor makes the point that we shall be moving away from a codified and protected system to an unprotected one. This is probably the first time this has happened.
For people keen on the sovereignty issue and see all things European to be harmful, then this is what they seek. For them the supremacy of parliament is a key principle. But what has been happening over many decades – and preceding our entry into what was then called the Common Market – was that judges were becoming more willing to interfere in some aspects of legislation. Because we have signed up to the European Charter, where our legislation conflicts with that, then judges are willing to rule against it. The fundamental problem the UK has is a lack of a constitution. The charter was a kind of stand-in constitution against which the legislative process could be tested.
The Human Rights changed that. In regards to the HRA, Professor Gearty stated that:
In the breadth of its ambition and in the potential reach of its terms, British Law has never seen anything like this piece of legislation’. The way in which the Human Rights Act 1998 changed the legal landscape was by inserting a new method of interpretation into British Law which required the courts to read and give effect to legislation in a way which is compatible with the Convention rights ‘so far as it is possible to do so’(s3); requiring that the courts take into account decisions of the Strasbourg Court when determining a question concerning a Convention right (s2); allowing the Court to make a declarations of incompatibility (s4); making it unlawful for public authorities to act incompatibly with the Convention (s6); and by creating a cause of action for breaches by a public authorities and providing for remedial damages for breaches. (s7 and s8). (Church Court Chambers)
For critics of the involvement of the European Court, there is a kind of misty eyed reverence to the British system which does of course have many strengths and has evolved over many centuries. This was particularly noticeable during the Magna Carta celebrations two years ago. But historians will know that it has been a struggle for some simple rights and laws of benefit to ordinary people, to be enacted. Legislation such as the factory acts and public health for example, took decades to enact against fierce resistance by vested interests in parliament. Full enfranchisement itself did not happen until 90 years ago in 1928.
Recent events surrounding the Windrush scandal have shown a legislature and an executive all too willing to inflict misery on thousands of people. The idea that parliament is there to protect the welfare of ordinary people such as those who came here in the ’50s, does not stand up to examination. There is thus a real concern that once we exit the ECJ and the Withdrawal Bill becomes law then some of our rights will be taken away. This will not happen straight off but over time using the infamous Henry VIII powers. The role of the courts will be weakened. The Charter of Fundamental Rights will no longer apply and we will be at the whim of parliament. The key issue behind the scandalous treatment of the Windrush generation was that although there were two immigration acts, a lot of the day to day nastiness was done administravely. So the idea that parliament is sovereign is flawed.
One of the curious anomalies of our political discourse is that people do not usually trust politicians. If someone at a public meeting said ‘I think we should trust politicians’ it would likely engender laughter and ridicule. But by removing our country from the aegis of the charter we will be giving power to politicians and the executive which amounts to trusting them with our rights. Since parliament is rife with self-interest, secretive lobbying by special interest groups, the revolving door enabling ministers and others to take up lucrative positions with organisations which they were supposedly in control of, and behind closed door influence from powerful media barons: to expect it to take interest in the rights of ordinary individuals is a big ask. There are honest politicians and many with consciences but they are few against the party machines.
Bognador ends his piece by saying that ‘the tide of history is towards greater protections, but the coming change threatens to make us more lawless. And it may well be that a country, which wasn’t primed for this sort of change, will not be content with that.’
The arguments over the role of European law and the remit of the ECJ might seem esoteric, the sort of thing lawyers get enthused about and no one else is the least bit interested in. But the effects of a loss of control over the executive and a dysfunctional parliament will eventually be experienced by all and there won’t be anyone to protect us.
Update: See the Amnesty blog post on the reaction of young people to the threat to human rights post Brexit.
*Amnesty has no position on whether to remain or leave the EU: this blog is just about human rights if we leave