31 March 2017


'Brexit and the British Bill of Rights' by Tobias Lock, Tom Daly, Ed Bates, Christine Bell, Kanstantsin Dzehtsiarou, David Edward, Murray Hunt, Kagiaros Dimitrios, Fiona de Londras, Cormac Mac Amhlaigh, Christopher McCrudden and Anne Smith considers 'the mechanism and consequences of the United Kingdom’s exit from the European Union (‘Brexit’) and the plan to establish a British Bill of Rights'.

Its key points are:
  • The issue of consent regarding the initiation of Article 50 of the Treaty on European Union (TEU) to formally trigger the Brexit process under EU law is highly complex, relating to five cross-cutting dimensions: 
    (i) the involvement of the UK Parliament in the Brexit negotiations; 
    (ii) the consent of the Norther n Ireland Assembly to Brexit; 
    (iii) the consent of the Scottish Parliament; 
    (iv) the need for unanimous agreement by all EU Member States should the UK wish to reverse the triggering of Article 50; and 
    (v) the possible need to obtain the consent of the Republic of Ireland to Brexit as a fundamental alteration of the Good Friday Agreement. 
  • Brexit presents a clear reduction in formal protection of fundamental rights in the UK through discontinued application of the EU Charter of Fundamental Rights and Freedoms; 
  • Whether this reduction in rights protection can be addressed by other measures at the national level, particularly the inclusion of ‘lost’ EU Charter rights in a British Bill of Rights, is questionable; 
  • Brexit, a BBR, and other related policy pledges seeking to reduce the application of international human rights law to UK actors, taken within the current context and their likely consequences, represent a weakening of the human rights protection framework as a whole – a certain ‘disentrenchment’ of human rights, reversing the decades-long trend toward incremental expansion in the right protection afforded to individuals across the UK. 
  • Various existing government policy proposals aimed at ‘freeing’ the UK from intervention of the European Court of Human Rights appear to be rooted in misconceptions concerning the nature of the ECHR and international human rights law more generally. 
  • Regarding plans to repeal the Human Rights Act (HRA) and its replacement by a British Bill of Rights (BBR), this would not free the UK from its obligations to comply with the judgments of the European Court of Human Rights in cases where the UK is a respondent party. In fact, it might lead to an increase in the number of successful applications to the Strasbourg Court, diminish the possibility for meaningful dialogue between the Strasbourg Court and the British courts, and thereby amplify rather than lessen the impact of Strasbourg case-law. The only viable way to remove such obligations is for the UK to denounce (leave) the European Convention on Human Rights (ECHR). 
  •  Repeal of the HRA, its replacement with a BBR, and other related policy pledges seeking to reduce the application of international human rights law to UK actors, all ultimately appear to set a path toward withdrawal from the ECHR.
  • In this connection, it was noted that UK withdrawal from the ECHR system would be likely to lead to withdrawal from the Council of Europe, which would significantly undermine the UK’s reputation as a state that cares about human rights protection. The UK would be only the second country in Europe which is not a member of the Council of Europe; the other being Belarus with its very problematic human rights record. 
  • Withdrawal by the UK would rep resent the first time a long-established Western democracy has left a major international human rights regime. Such a move would place the UK in the company of Greece under military rule in December 1969, when it left the ECHR system and Council of Europe, or more recently, Venezuela under Hugo Ch├ívez, which denounced the American Convention on Human Rights in 2012 in order to leave the jurisdiction of the Inter-American Court of Human Rights. 
  • Brexit poses real threats to the fragile peace in Northern Ireland, given that EU membership is central to the Good Friday Agreement, and given that EU law is dominant in areas that are clear ‘flash points’ for discord between the parties in the consociational government, such as equality legislation. 
  • Plans for repeal of the HRA, its replacement by a BBR, and other related policy pledges, pose threats not only to rights protection in the UK, but also to the rights protection (albeit limited) provided by the ECHR system in other states of the Council of Europe, given that UK withdrawal from the ECHR would be likely to trigger withdrawal by other states, such as Russia and Azerbaijan. 
  • The most fundamental conclusion from the workshop is that the current governmental approach to Brexit and a British Bill of Rights does not adequately appreciate, or address, the extraordinary complexity of human rights protection in the UK, which enmeshes protections across the international, EU, State, devolved, and bilateral planes. Until, and unless, policy formation begins to fully grapple with this complexity, serious rule of law and legitimacy questions will hang over the solutions presented by the Conservative government to the current constitutional entanglement