What’s the future for human rights law in the UK after Brexit? The starting point in the debate is what happens to the Human Rights Act – the subject of Professor Gearty’s new book On Fantasy Island. It has a thorough grasp of detail, but also makes the case for the Act in its social, political and historical context. It has a command of the whole subject, but also demonstrates the importance of human rights cases to the individuals concerned.

In particular, On Fantasy Island demolishes the myth of a glorious past for human rights as part of the common law (see also his blog post on this theme). As Professor Gearty notes, it’s true that the Salvation Army had the right to march joylessly to demand that people endure grinding poverty with tedious sobriety. But many others were unsuccessful asserting such rights – or were subject to wrongful convictions which sometimes either turned into wrongful executions or would have done so if the death penalty were still applied.

The book also punctures the misunderstandings of the Human Rights Act (HRA) that portray it as entrenching excessive judicial power constraining elected politicians – pointing out that the courts (in the UK, or the European Court of Human Rights) cannot overturn Acts of Parliament on human rights grounds.

Indeed, in light of this conscious compromise between parliamentary sovereignty and human rights protection – comparable to that in ‘poster child’ common law Commonwealth states Canada and New Zealand – coupled with British involvement in drawing up the ECHR, it could be said that the UK’s human rights system is already so ‘red, white and blue’ that even Pavlov’s bulldogs should salivate at the mention of its name.

Of course, the public perception of the UK’s human rights system does not see it as closely linked to our legal heritage, despite several provisions of the ECHR and HRA that resemble Magna Carta. I’ll return to that problem below.

The Brexit context

There’s a substantive dimension to the links between Brexit and the Human Rights Act, as well as a broader political and advocacy dimension. Substantively, human rights are protected as a matter of EU law whenever the issue in the particular case is linked to EU law, for example in areas such as data protection, discrimination and asylum law. In that case, the EU Charter of Rights applies – with rights corresponding to the ECHR as well as some rights drawn from other sources. There’s also a stronger system for protecting those rights: UK courts at any level can set aside an Act of Parliament if necessary to that end, as seen in Vidal-Hall and Benkharbouche.

After Brexit, such protection will be governed by the detailed rules in the planned ‘Great Repeal Act’, which will convert EU law into UK law until individual measures are amended or repealed. This raises issues similar to the ‘post-HRA’ scenario discussed in On Fantasy Island. In particular: will CJEU case law still apply? Will the Charter of Rights still apply? What will the legal effect of the Act be, as a matter of domestic law? Will it be considered a ‘constitutional statute’, with a form of privileged status compared to other Acts of Parliament? How easy will be for the executive to repeal ex-EU laws (an issue discussed further here).

As for the political dimension, there is some overlap between the debate over the Human Rights Act and Brexit, but some differences too. Most notably, the dynamics of a referendum do not apply to the debate over the HRA.

And yet, the debate over HRA repeal will take place in Brexit Britain – a country which, to update Dean Acheson’s famous phrase, has now lost its post-war role but cannot refound its empire. Frustrated by this unavoidable fact, it is unlikely the critics of all things ‘European’ will feel full after Brexit. The Human Rights Act looks likely to be their next snack.

There is, however, a theoretical possibility – canvassed in Professor Gearty’s book – that a new British Bill of Rights or somesuch could be fashioned, while avoiding the weak points in the common law system for the protection of human rights. Frankly, while this might (with perfect hindsight) have been the best way to establish ‘constitutional patriotism’ for the Human Rights Act from the outset, this seems unlikely to happen in the current political context. 

First of all, leaked government plans indicated the intention was to remove effective remedies while handing the constitutional equivalent of a ‘bung’ to tabloid newspaper editors.

More broadly, the level of public debate since the referendum vote has been diabolically poor. One side basically repeats ‘You lost. Shut up!’ while the other repeats ‘We won’t. You lied!’ ad infinitum. This ‘debate’ has been punctuated by political murder, escalating threats of violence, and a large part of government and media opinion showing visceral contempt for the rule of law and parliamentary democracy.

Towards a new defence of the Human Rights Act

So there’s a strong case for retaining the Human Rights Act; but if we want to retain it, we have to defend it. It’s important to think of the best way to defend it, however. As lawyers or law professors we have to teach and practice human rights law technically – to understand deadlines for filing better than the Home Secretary, for instance. I’ve been called ‘forensic’ so many times that I should probably have my own CSI spin-off.

Moreover, some of the argument in defence of the HRA is defensive. As I pointed out already, Professor Gearty’s book rightly argues that the Act doesn’t allow the Courts to overrule Parliament. But reading arguments like these reminds me of the EU referendum arguments that the UK can overrule major changes to the EU, or that ‘unelected bureaucrats’ do not make all EU laws. Perfectly accurate arguments – but they did not win the day.

It’s also necessary to focus on a more positive case for the Act (including the ECHR more broadly). Some claimants are undeniably hard to love. But human rights law also helped a gay man kicked out of his home because the love of his life died. It protected the elderly in care homes left in their own filth. It safeguards children beaten so badly by their parents that they need to visit the hospital. It offers justice to grieving family members trying to find out why their loved one died. And it exposed wrongdoing leading to the tragic fate of many children whose mothers took the thalidomide drug.

This is the rational but passionate, reasoned yet humane, case that we have to make for the preservation of the Act.

I hope the strong anti-EU sentiment following Brexit doesn't result in a slippery slope or rejection of more things European