The Human Rights Act 1998 was enacted mainly for the purpose of incorporating the rights in the European Convention on Human Rights into United Kingdom laws. In essence, the Human Rights Act 1998 makes it illegal for any public entity to do anything in a way that is not likeminded with the convention. This can be allowed only in the case that the phrasings of any other chief statutes gives no other choices. The interpretation of this acts mandates that domestic courts are allowed to take into account the jurisprudence of the European Court of Human Rights. Brexit in simple terms is the withdrawal of the United Kingdom form the European Union1. In the midst of sit downs and negotiations regarding Brexit, a significant issue that warrants the attention of all stakeholders arose. The rights of European Union citizens that are located in the United Kingdom and United Kingdom citizens that are located in other European Union countries has raised political issues. Even though the impact of Brexit on human rights does not hold a significant position in the midst of Brexit negotiations, it should not be overlooked.
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The European Union laws are categorized into two: primary and secondary legislations. The primary legislations are made up of EU treaties while secondary legislations comprise of recommendations, directives, opinions and other regulations. In the case of the United Kingdom, they are affected directly by EU’s treaty laws owing to the European Communities Act 1972. A good example would be the Equality Act 2010. This act makes it possible for ministers to modify UK equalities legislation to make sure there is legislative consistency if in case there is need of any changes by the European law. In the end, it is possible to consolidate areas of the Act covered by the European law with those of domestic foundation successfully.
To start with, with the success of the UK’s exit from the European Union, there will no longer be a protection of the European Union charter of fundamental rights. In general, there will be a massive loss of rights and protections that will no longer be there for the benefit of British citizens. Even though there will still be the European convention on human rights, this is much different from the European Union charter of fundamental rights. The EU charter covers a considerable amount of protections that are integral in the running of UK’s fast-changing society. Perfect examples would be the right to freestanding right to equality, data protection and the protection of children’s rights. It is important to remember that the European Convention on Human Rights was assimilated into UK law through the Human Rights Act 19981. After the Brexit, the European Convention and the Human Rights Act will hold even more significance than ever before. In the United Kingdom, these two will remain to be the uttermost main protections from abuse of human rights. It is possible that after the Brexit, these two regulations could lose applicability in the UK. In fact, looking at it critically, the Brexit will end up in the loss of the present Charter safeguards and social protections that are made possible by European Union law. To add on that, the Brexit will also hamper any prospective enhancements in essential rights protection at the EU level in form of case laws, legislations or treaty changes. In essence, even though there is lack of clarity on the implications of the Brexit, it is most probable that exit from the European Union will result in the Charter loss of application in the United Kingdom. After the loss of significance of the Charter in the UK with no efforts to salvage the situation, there will be less human rights restrictions on the UK parliament as well as the Scottish parliament.
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Such implications have led to significant governmental bodies to devote their attention and resources to ensure that the UK maintains stability after the Brexit with regards to the Human Rights Act 1998. For instance, the parliamentary point committee of human rights have voiced solemn worries on how the government is approaching the safeguarding of the people’s fundamental rights after the success of Brexit. However, the government has shown notable reluctance to openly discussing the issue concerning human rights after the Brexit2. It is important to note that with the success of Brexit, the UK will no longer enjoy the benefits of protections of the European Union rights structure and its court. However, leaving the EU would not would not affect the duties of the United Kingdom under international law to conform to these agreements. It is in order for the UK government to ensure that its British citizens are instead protected through the country’s legal and constitutional structure. By placing this responsibility on the shoulders of the UK government, it does not exclude other important players that may help to attain this goal. For example, members of parliament have to advocate for parliamentary time to accommodate new laws. Environmental lawyers also have to be involved. It is the responsibility of equality lawyers and organizations together with the Equality and human rights commission to make a case advocating for a freestanding legal right to parity2.
In the case of a conservative government, the Brexit would have been detrimental to the protection of human rights2. However, the UK is making significant advances to ensure that this is not the case. The Brexit secretary, Keir Starmer has portrayed concern about the EU charter for fundamental rights2. Keir Starmer has gone a step further to open up avenues that make it possible to employ the use of an appropriate public debate. Even though such progress should have been realized before, it is still commendable. Instead of the laidback stance, it is encouraging to see the UK tackle the Brexit head on and consider all implications.
It would be hard to talk about the implications of Brexit on the Human Rights Act 1998 without touching on Liberty. As a non-party and domestic human rights campaigning organization, Liberty did not actively take part in the referendum regarding the Brexit. Considering the European Convention on Human Rights was assimilated into UK law through the Human Rights Act 1998, the UK government had warned to repeal it1. Liberty is however against this proposal by the government. Even though have had little to do concerning the Brexit, Liberty is well over concerned about upholding the protection of human rights in the United Kingdom especially after the impending Brexit. In order to successfully attain this goal, Liberty has taken it upon themselves to carry out a research to ascertain the implications of Brexit for human rights and civil freedoms in the United Kingdom. The results of the research were meant to aid in:
- Preservation of employment rights and protection of equality.
- Maintenance of the rights of European Union citizens in the United Kingdom.
- Defending the rights of crime victims.
- Instilling human rights standards in refuge and immigration rule.
- Sustaining privacy and data safeguarding standards.
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With regards to the research, Liberty has made initial development by recommending some measures to the joint Committee on Human Rights’ Brexit Inquiry. First of all, Liberty mandates that all present EU-law rights protections be upheld. This is inclusive of labor law, equality laws and privacy protections. Upholding of these EU-law rights protections is covered in the proposed ‘Great Repeal Bill’. Even after withdrawal from the EU, significant conquests in terms of human rights that have been benefiting the UK should be maintained. Liberty also insists on protection of legal rights of European Union citizens in the United Kingdom. Even after the success of Brexit EU nationals that reside in the United Kingdom should not be used as leverage in any way. Instead, EU nationals should be assured of the right to stay in the United Kingdom anyways with a right to access to healthcare, employment and education. Thirdly, Liberty is keen to preserve protections that are part of the Common European Asylum System. The UK is supposed to maintain its involvement in providing humanitarian protection to EU nationals seeking asylum like war refugees from Syria. Lastly, Liberty also proposes commitment to disabling hate crime. Specifically, equal attention should be given to hate crime with regards to one’s nationality as with other motivations for hate crime. This will help to cover the gaps that were failed to be covered by the Government’s Hate Crime Action Plan.
Conclusively, even though the negotiations on Brexit do not cover concerns about its implications for human rights, there is evident correlation. The Brexit will definitely affect the Human Rights Act 1998 through the European Convention and the Human Rights Act and the European Union charter of fundamental rights. Considering the United Kingdom is far from being a conservative nation, it is supposed to strategize in order to ensure that EU nationals in the UK as well as British citizens continue to enjoy the benefits that come with the Human Rights Act 1998.
- Catharine MacMillan, ‘The Impact of Brexit upon English Contract Law’  27 LQR 420, 423
- Ewing, K.D., ‘The Resilience of the Political Constitution’  14 QLR 293, 299
- Michael Ford Q.C. ‘The Effect of Brexit on Workers’ Rights’  PL 398
- Pattinson, Shaun D., ‘The Human Rights Act and the Doctrine of Precedent’  35 LQR 142, 147
- Robert Wintemute, ‘Goodbye EU Anti-Discrimination Law? Hello Repeal of the Equality Act 2010?’  27 LQR 387, 391
- Thomas, Sampson, ‘Brexit: The Economics of International Disintegration’  PL 163
- Vernon Bogdanor, ‘Europe and the Sovereignty of the People’  PL 348
- Reading, P., European Union Law and the Human Rights Act (first published 2010, Oxford University Press) 8
- Russel, K.; McLean, N. ‘Brexit Analysis Bulletin Employment, Immigration and Human Rights’ (Shepherd and wedderbum, 29th June 2016) <http://www.shepwedd.co.uk/sites/default/files/Employment-PostRef-Brexit.pdf> accessed 12th January, 2018
- Schona Jolly, ‘Scared about your human rights after Brexit? You should be’ The Guardian (New York, 14th July 2017) n.p