As the Brexit negotiations reach their endgame, the border on the island of Ireland has become the main stumbling block. The so-called ‘Irish question’ is, however, much more multi-faceted than just the issue of ‘border checks’. The Good Friday Agreement (GFA) which has brought relative peace for the past two decades has a number of different facets that will potentially be negatively impacted by Brexit. This short post will focus on one of these aspects— the protection of human rights—and underline why, despite the protestations of so-called ‘hard Brexiteers,’ close alignment between the UK and the EU will be necessary following Brexit. Whether this will actually occur is, however, another question.
Human Rights and the Good Friday Agreement
The GFA gives express recognition to the European Convention on Human Rights (ECHR)— an international treaty under the auspices of the Council of Europe and separate to the European Union (EU). UK membership of the Council of Europe therefore is not prima facie affected by Brexit. That stated, while sources of EU human rights law such as the Charter of Fundamental Rights (CFR) are not expressly mentioned, the GFA assumes that both parts of Ireland would remain in the EU.
The GFA requires ‘equivalence’ between the human rights protection in both jurisdictions on the island of Ireland. Both Ireland and the UK have thus incorporated the ECHR into domestic law through the European Convention on Human Rights Act 2003 and the Human Rights Act 1998(HRA) respectively. Equivalence does not mean ‘identical’, however, as the ECHR permits variations in rights protection from country to country so long as states stay within their ‘margin of appreciation’. There are already quite marked distinctions in human rights protection north and south of the border; notably, marriage equality, and abortion rights too in the near future. The principle of equivalence in the GFA is further complemented by the principle of ‘non-diminution’: that rights protection in both jurisdictions may progress but not regress. Under the terms of the GFA, Brexit therefore needs to be delivered in a way that ensures an equivalence of rights protection north and south and without resulting in a diminution of rights.
Brexit and Human Rights
Despite the prominence given to the ECHR in the GFA, this does not mean that Brexit will have no impact on human rights in the UK, and Northern Ireland in particular. Firstly, while many of the rights in the CFR overlap with the ECHR; de Mars et al. note that the EU’s CFR is much more robust and substantive in areas such as data protection, workers’ rights and equality law. Section 5(4) of the European Union (Withdrawal) Act 2018, states that the CFR will not be part of domestic law on or after ‘exit day’ of 29 March 2019 meaning that without the ‘constraints’ of the CFR, the UK will be free to chip away at EU rights protection as it amends its laws, free from the ‘red tape’ of the EU. Furthermore, section 8 of the EU Withdrawal Act empowers government ministers to amend a broad array of legislation with minimal parliamentary approval—so called Henry VIII powers. In so providing, the role of parliament as a forum for resolving disagreements over human rights—a key factor that is often advanced to normatively justify the UK’s political constitution— is curtailed and circumvented.
A further factor to note is that rights do not vindicate and protect themselves; rather, mechanisms are needed to give effect to them. In this regard, the machinery of the CFR and ECHR are notably different. Under the HRA, British courts are empowered to find acts of public authorities unlawful if they breach the rights contained in the ECHR. In addition, the HRA gives courts the power to interpret legislation compatibly with the ECHR and, where this is not possible, to issue a declaration of incompatibility against the offending statutory provision. A declaration of incompatibility does not, however, affect the validity of the provision; rather, it is left to Parliament to decide how, if at all, to remedy the breach. Under the ECHR system, an individual can also take a case to the European Court of Human Rights (ECtHR); however, they can only do this as a last resort once ‘all domestic remedies’ have been exhausted. And again, a judgment of the ECtHR does not invalidate the domestic laws of a state.
In contrast, where a part of UK domestic law offends EU law—including the CFR— courts must ‘disapply’ it which, while not the same as invalidating a piece of legislation, has the same practical effect in a given case. In addition, domestic courts can refer a question on the interpretation of EU law to the European Court of Justice at any stage in the proceedings. Domestic remedies do not need to be exhausted first. The protection of rights under the EU system therefore can be more immediate and impactful than the ECHR system and will thus be denied to individuals living in Northern Ireland once the UK exits the EU.
For these reasons, Brexit must be delivered in a way that maintains the provisions of the GFA and this been reaffirmed by both the UK and the EU during the course of the Brexit negotiations. There is a degree of flexibility in the terms of ‘equivalence’ and non-diminution’; however, this space is not so wide as to allow anything other than close alignment between the UK and the EU after ‘exit day’ on 29 March 2019 in order to vindicate the requirements of the GFA.
Repeal of the Human Rights Act and withdrawal from the ECHR?
Brexit and the rhetoric of ‘taking back control’ has revealed a hostility towards international norms in certain corners of UK political and media discourse. While Brexit does not ostensibly affect the UK’s membership of the ECHR, there are indications that it may be next in the cross-hairs. Firstly, the Conservative Party’s 2017 manifesto contained a proposal to derogate from the ECHR for British armed forces overseas, the legality of which would be highly questionable at best. While this proposal has not been implemented, it raises the spectre of a future clash with the ECtHR on this point and a potential ground for the UK to withdraw from the ECHR entirely. Secondly, during the 2017 election Theresa May threatened to ‘rip up’ human rights protections following a spate of terrorist attacks during that campaign. This rhetoric corroborates May’s noted dislike of the ECHR which she vocalised during the 2016 referendum campaign, arguing that the UK should stay in the EU and withdraw from the ECHR instead. Thirdly, there have been a number of press reports suggesting that withdrawal from the ECHR is on the political agenda following the completion of Brexit.
Consequently, while the case may be made that Brexit has sated the appetite of Euro-sceptics to the extent that repeal of the HRA and withdrawal from the ECHR is no longer on the cards, the continued attacks on the HRA and ECHR following Brexit would suggest that this may not be the case. Were such a development to arise, this would be a flagrant breach of the GFA.
The protection of human rights is fundamental to the GFA and it is difficult to see how anything less than close alignment between the UK and the EU following Brexit will deliver on the GFA’s requirements of ‘equivalence’ and non-diminution of rights protection on the island of Ireland. Under the fundamental British constitutional principle of parliamentary sovereignty, however, such a requirement cannot legally constrain Parliament’s capacity to legislate as it sees fit. Brexit is stress-testing the UK constitution in a number of ways; in particular, the heavy emphasis that the UK Constitution places on conventions and controls that are political rather than legal. While it remains to be seen what form the UK’s withdrawal from the EU will take, the developments and rhetoric to date do not bode well for the standard of rights protection currently enjoyed by those living in the UK. Brexit also acts as a litmus test for the UK’s commitments to its other international human rights obligations—namely under the ECHR. If the UK’s withdrawal is executed in such a manner that it leaves the principles of ‘non-diminution’ and ‘equivalence’ in tatters, this would not bode well for the UK’s membership of the Council of Europe, notwithstanding the express vindication the ECHR is given in the GFA.
University of Birmingham
Alan Greene is a Senior Lecturer in Public Law and Human Rights at Birmingham Law School. His book Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (Hart Publishing, 2018) was shortlisted for the Society of Legal Scholars Birks Prize 2018. He is on Twitter at @DrAlanGreene.
Please note that this article represents the view of the author(s) alone and not European Futures, the Edinburgh Europa Institute or the University of Edinburgh.
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