As any student of civics knows, the United Kingdom has an unwritten Constitution. But it does have a number of constitutional instruments that define the basic fundamental freedoms and human rights of its citizens. The most important constitutional instrument in today's Britain is its Human Rights Act, 1998 – but its future is in peril after the vote in favour of Brexit.
Unity and community
The European Convention on Human Rights – like the European Court of Human Rights, to which it is attached – emerged out of the Council of Europe system, which is distinct from the European Union. The Council of Europe is the continent’s leading human rights organisation and includes 47 member states, 28 of which (including the UK, for now) are members of the EU.
In order to adhere to its obligations as a Council member, the British Parliament enacted the Human Rights Act to give effect to the provisions of the European Convention.
The Act grants people in the UK fundamental rights and freedoms like the right to life, right to a fair trial, and respect for private and family life, among others. Both British and European judges, under the Act, can declare domestic legislation and administrative action as being incompatible with the European Convention. For example, in 2002, a law criminalising attempted buggery (sodomy) in Northern Ireland, a part of the UK, was declared incompatible with the right to private life as it interfered with consensual sexual relations between individuals.
But judges of the European Court of Human Rights cannot strike down legislation that violates the rights guaranteed by the European Convention. The power to strike down legislation is vested with the apex legal body of the EU, namely the European Court of Justice, which ensures that member states comply with their human rights obligations, and draws heavily from the European Convention and the EU’s own Charter of Fundamental Rights in ensuring the supremacy of EU law over member states’ domestic law.
As one legal academic astutely put it,
“If the function of the European Court of Justice is to help build unity, then that of the European Court of Human Rights is to help build a community.”
The UK’s continued membership of the Council is not dependent on its EU membership and its obligations under the European Convention will continue post-Brexit. Nevertheless, with all notions of European “unity” shattered by Brexit, the “leavers” are most likely to turn their attention towards destroying the idea of one European “community” based on respect and dignity of the individual, symbolised by the much maligned (in Britain at least) European Conventoon and the country’s Human Rights Act.
A rightwing bogeyman
The repeal of the Human Right Act was a part of the (soon to be ex) Prime Minister David Cameron’s Conservative party manifesto leading up to the 2015 general election, but his attempts to do so have been foiled due to the lack of an alternate “British” Bill of Rights. In light of the vote in favour of Brexit, it should come as no surprise that decisions of the European Court of Justice and European Court of Human Rights have historically drawn the ire of the UK’s political right, with its standard bearer the Daily Mail newspaper chronicling the follies of “human rights luvvies” and blaming supporters of the Act for helping killers and rapists avoid deportation.
To make its case, the newspaper, in an article published last month, referred to the case of the Congolese asylum seeker who allegedly raped two young girls and “used the fact that he has two children to stay in Britain.” The newspaper also invoked the Somali rapist who was “ordered to be deported but immigration judges refused saying it would breach his family rights. He does not have a wife or children in Britain but his mother and other family members lived here.” Among the beneficiaries of “human rights” were included the Iraqi “killer”, the Bangladeshi “violent mother”, the “sex offender” from Sierra Leone, the Nigerian “rapist” and the “alcoholic” from Libya.
All of this has served as ideal fodder for the leavers to ensure that the UK can, in the words of the Daily Mail,
“ignore verdicts by Euro judges and give our Supreme Court the final say, as well as making it easier to throw out foreigners convicted of the most serious crimes.”
British political commentator Heather McRobbie put it as follows:
“The Leave campaign has drawn upon the xenophobic rhetoric that the Murdoch/right-wing press has stirred for decades, which erroneously depicts ‘human rights’ – embodied in the right-wing press’s bête noire of the Human Rights Act – as sinister mechanisms created to ensure terrorists can have spa days in their prisons and convicted paedophiles are more ‘protected’ than their victims.”
The Human Rights Act incorporated the European Convention into British law and like any other piece of legislation, it can be removed at any time by a new Act of Parliament. The shock resignation of David Cameron as a result of the victory of the leavers, led by his rival and the former Mayor of London Boris Johnson, bolsters McRobbie’s argument that the removal of the Act is likely to come in tandem with Brexit.
A ‘glorious opportunity’
The vote in favour of Brexit has given extreme right-wing leaders in other major EU member states a shot in the arm. Marine Le Pen, leader of France’s ultra-right wing party, the National Front, predicted a Frexit and claimed that the time had come to import democracy into France. Geert Wilders, the leader of the Dutch Freedom Party that has campaigned to stop the “Islamisation of the Netherlands” stated that time had now come for a Dutch Referendum. Mateo Salvini, the leader of Italy’s anti-immigration Northern League was jubilant and stated that his country should follow suit.
Across the pond, Donald Trump weighed in and hailed the British people for reclaiming their country. This sentiment was echoed by the man who has recently been called Britain’s Donald Trump for his sneering racism, and quite possibly the next Prime Minister of the UK, if the bookmakers are to be believed, Boris Johnson. Johnson hailed the glorious opportunity that Brexit would bring and states, “We can pass our own laws”. The President of the European Council, which comprises of the Heads of State and the governments of member states, laid down the law and stated emphatically that “until the UK formally leaves the EU, EU law will continue to apply to and within the UK, and by this I mean rights, as well as obligations.”
When the UK does formally leave the EU, the future of human rights and the plight of those seeking asylum and refuge in the land that gave the world the Magna Carta is far from certain.