By Dr Natasa Mavronicola (School of Law, Queen’s University Belfast)
What are the implications of the Brexit vote for human rights? I propose to set out some of the issues raised under 3 thematic umbrellas. The first ‘umbrella’ catches the significance of this vote for the European human rights project in general. The second point of focus is the EU’s record and potential in safeguarding rights. The third aims at locating the ‘battleground’ for human rights in the UK, Europe, and beyond.
I begin by doing something I do not often do, and quote the Daily Star:
‘Euro judges cause outrage over killer ruling: EUROPE’S top judges caused outrage yesterday in a ruling which could set free Britain’s most notorious killers.’
This headline, on 10 July 2013, related to the European Court of Human Rights’ judgment in Vinter v UK, which found that life imprisonment without the possibility of parole was a breach of the right not to be subjected to inhuman or degrading treatment or punishment.
Here is another apt statement found in the run-up to the referendum in the Daily Telegraph:
‘A report last week warned that 5,789 criminals from overseas are free to walk the UK’s streets – the highest number since 2012 – because they are protected under EU human rights laws.’
Finally, I quote the headline of a 2012 article by the Daily Mail, which, quite simply, stated: ‘You can’t spell the European Court of Human Rights without EU, Mr Cameron’, before a tirade of remarks against human rights which suggested that to abandon the ECHR the UK must also abandon the EU.
As first-year Law and Politics students across the UK are repeatedly warned, the European Union (EU) is not the same body as the Council of Europe (CoE). The EU is an economic-political union of 28 Member States; the CoE is, in its own words, the European continent’s ‘leading human rights organisation’ and is dedicated to protecting human rights, democracy, and the rule of law across the 47 Member States that make up the CoE. The European Convention on Human Rights (ECHR), which the UK played a major role in drafting and which has been the central instrument of human rights protection in Europe, is a CoE instrument, and applies across the 47 Member States of the CoE. The European Court of Human Rights in Strasbourg is charged with providing authoritative interpretation of the Convention and it does so in cases brought against States usually by individuals who argue that their rights have been violated by the State at hand. The primary source of human rights protection domestically in the UK is the Human Rights Act of 1998, and this legislation transposes the European Convention on Human Rights into UK law.
The point of quoting these newspapers is to highlight that often, the media and arguably the public are indifferent to who exactly it is that has come up with a judgment whose implications they consider problematic, and what was the legal instrument on the basis of which they came up with it. In all the examples I set out, the distinction between the ECHR and EU law is elided, and the attacks made merge them as targets of a general Euroscepticism. So the referendum on 23 June may technically have concerned whether or not the UK remains a member of the European Union, but in broader terms it could be read as a vote about the UK’s relationship with Europe. In a talk at City University on 13 June (audio), I suggested that the vote to leave could be read as a vote against the European project writ large, and that whoever was left standing in the ruling party following such a vote might feel an even stronger compulsion than that which currently drives the Tory party to discard or dilute the ECHR. As it happens, the person left standing is Theresa May, who in April 2016 stated she favoured remaining in the EU but leaving the ECHR.
This means that the vote to leave may well set in motion a domino effect resulting in the repeal of the Human Rights Act of 1998, and its replacement with a diluted ‘British’ Bill of Rights (and Responsibilities) – which may be less human-orientated in distinguishing between the deserving and the undeserving – and possibly the departure of the UK from the CoE and the ECHR. Indeed, membership of the EU forms one of the main barriers against doing away with the ECHR’s application in the UK, as remaining subject to the ECHR is effectively a pre-requisite of EU membership. Of course, another international obligation which subsists irrespective of the 23 June vote, located in the Good Friday Agreement between the UK and Ireland, may also impede the full removal of ECHR rights from the UK, or at least Northern Ireland.
The loss of European Convention rights would have detrimental implications for all of us in the UK, but especially for the most vulnerable, and in particular those who sometimes or invariably fall through the cracks of majoritarian party politics or even face the vast majority’s wrath. The ECHR has been a source of protection for the human rights of children, ethnic minorities, women, Roma, gay and trans persons, the disabled, the elderly, migrants, asylum-seekers, and yes, prisoners and terrorist suspects, in the face of laws, policies and practices which violated their rights. Those in the Tory party who want to do away with it have predominantly targeted what they see as the expansive reading of the ECHR by the European Court of Human Rights in the face of UK resistance; put more simply, they have targeted aspects of the Convention and its interpretation that they consider to be politically unpopular or unduly inconvenient. Those aspects of the Convention are the most crucial for the most vulnerable.
My second focal point is the EU’s own human rights record and human rights potential. A disclaimer is warranted first. The EU is not a human rights organisation per se. Additionally, its record in terms of respect for human rights is, to say the least, patchy, at least if you truly believe in human rights, which include the human rights of migrants, asylum-seekers, and those worst hit by the Eurozone’s austerity policies. Although Article 2 of the Treaty on European Union provides that ‘The Union is founded on the values of respect for human dignity, freedom, democracy equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’, we should be careful not to take this treaty provision at face value. The EU’s commitment to human rights for all leaves something to be desired, and the human rights shortfall, like the democratic deficit, is to an extent systemic and structural. The EU was not founded or seen necessarily as a human rights organisation, unlike the CoE. In its website, the EU is described as ‘a unique economic and political union between 28 European countries that together cover much of the continent’, and it is stated that it was set up primarily ‘to foster economic cooperation: the idea being that countries that trade with one another become economically interdependent and so more likely to avoid conflict’. The EU’s competences and policy areas have evolved to span environment, health, external relations, security and counter-terrorism, justice and migration, as well as what we might refer to as fundamental rights, but the market orientation of the EU remains. This market orientation has entailed that the fundamental freedoms of the EU – the free movement of workers, capital, goods, and services which are often referred to as ‘the four freedoms’ – are generally prioritised over other concerns, including human rights, where a conflict arises.
In spite of this, there is much to be said about the EU’s record and potential as concerns rights protection: when looked at from the UK, the EU has been at the vanguard of a number of rights guarantees; and, in turn, the loss in protection of rights that is likely to come about through leaving the EU will potentially leave many people in very precarious and vulnerable situations. In the field of gender equality at work for example, the EU has made significant leaps. EU law has expanded the right to equal pay in the UK, strengthened protection from discrimination at work and provided redress for women and others who have been unfairly treated or dismissed from work (see a relevant TUC report). EU law has protected pregnant workers from unfair dismissal in particular, and has also offered some vital protections to part-time and temporary workers, most of whom will tend to be women, giving them rights that under domestic law they may not have been qualified to benefit from.
The prospect of regression is all too real. Brexit could entail that the workers’ rights guaranteed by EU law are put in a precarious position. More generally the untangling of EU law from UK law could leave significant either temporary or permanent gaps in legal protection from discrimination and from other rights violations at work and beyond. There will, of course, also be tangible humanitarian impact on those persons who face the removal of free movement and EU citizenship-based rights in the UK. It is difficult to speculate exactly what will happen to those who have moved from other EU States to the UK to study and work, but Theresa May has not excluded the prospect of expulsion from a State in which they have built lives, friendships, and families.
In terms of human rights more generally, the EU has gradually built a somewhat defensive commitment to human rights. This commitment was in part the result of gentle or not so gentle coaxing by the constitutional courts of Member States, notably Germany, which demanded a better protection of human rights at EU level in order for them to accept the supremacy of EU law over their domestic laws, including their constitutions. The recognition of certain human rights by the European Court of Justice was to a large extent inspired by what the Court referred to as the ‘constitutional traditions common to the Member States’, and by human rights instruments to which the Member States were signatories, notably the ECHR and the European Social Charter (ESC).
Today, the EU has a Charter of Fundamental Rights, which has the same legal status as the Treaties. It includes a wide range of rights, including the protection of personal data, the rights of the child and the elderly, the right to healthcare, the right to collective bargaining, and the right to social security and social assistance, and prohibits discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation. The EU’s institutions must respect the rights enshrined in the Charter. The Charter also applies to EU States – but only when they implement EU law. The EU cannot intervene in fundamental rights issues in areas over which it has no competence. Moreover, some of the rights enshrined in the Charter are described to apply ‘in accordance with the national laws governing the exercise of these rights’, which can limit their bite. The Charter nonetheless provides a fertile prospect for building a more robust human rights protection across the EU, and for re-calibrating the Union’s skew towards market freedoms.
Moreover, the EU’s potential accession to the ECHR (which for the moment has stumbled upon a thorny set of obstacles at the European Court of Justice in its Opinion 2/13 in December 2014) would cement its human rights commitment further. Lastly, I should raise the role played by the EU’s Fundamental Rights Agency, whose work towards understanding and tackling challenges in the safeguarding of everyone’s rights across the EU can play an important role in making rights a reality on the ground, particularly since those challenges are increasingly transnational and global, and not isolated to individual States.
So the EU is no human rights utopia, but we might well consider it to show greater promise of safeguarding human rights than the promise which the UK’s ruling government has shown. There is good cause to worry about losing some vital protections that are provided by EU law and constitute a floor of minimum standards against the excesses and abuses that can be inflicted on workers and others by governments and employers. What will be instituted to replace them may well be considerably diluted.
Finally, I turn to the fight for human rights. There is a hard fight to be fought for human rights in the UK, in Europe, and beyond; and the battle does not end at human rights, which in my view are minimum standards that protect us against attacks on our human dignity. The minimalism of human rights does not entail that they have had buy-in across society – in fact, building a culture of human rights is an ongoing struggle. But the battleground is also broader, and, in my view, lies in reclaiming and safeguarding humanist, egalitarian, democratic polities against the deregulatory pull of global capitalism and the ever-evolving forces of neoliberalism. Did the Brexit vote reflect a rejection of the EU’s neoliberal agenda? Will it push towards restoring and refreshing humanist, egalitarian, democratic politics in the UK and beyond? For me, the answer to this question is, decidedly, no.
As indicated earlier, the EU has both a record and potential in safeguarding the human rights of some of the most vulnerable against the excesses of national government policies. In addition, membership of the EU constitutes a barrier against abandoning the ECHR. More than that, the EU is a vital conduit through which global deregulatory forces can be fought. A departure from the EU will do little to derail the race to the bottom created by global free trade regimes and other deregulatory agendas. Even under a different government than the one we currently have, the UK will still find itself confronted with a global push to the bottom, which can be much more potently fought in a concerted manner by those of us who care about human rights, welfare and labour rights across the UK, Europe and beyond.
Moreover, the Brexit vote has in no way sounded the alarm to the EU as an organisation to ameliorate its human rights record, redress its democratic deficit, and soften its neoliberal agenda. Rather, it has been read predominantly as the victory of a neo-imperialist Eurosceptic nationalism and populist lies, and as a PR failure by the EU and the UK’s Europhiles. If anything, it has signalled, and perhaps pushed towards, a shift to the right across Europe.
Brexit: Democracy, Markets and the Regions’, DELI/LGJD Joint Insta-Symposium