Will ‘Brexit’ lead to ‘Convexit’?

Inside the European Court of Human Rights

Given the apparently trendy move towards British supremacy following the departure from the European Union, should the government go the whole hog and expand this move towards sovereignty, and away from international interference, by also waving farewell to our even longer-standing membership to the European Convention on Human Rights?

We have been a member of the European Convention on Human Rights (ECHR) since 1951. In fact, we were one of the first member states to ratify the Convention; the UK playing a leading role in instigating a human rights agenda post the Second World War. On top of that, by implementing the Human Rights Act in 1998 parliament gave express effect to the rights under the treaty in domestic law. Some examples of these basic rights include the right to freedom of expression, under article 10, and the right to a fair trial under article 6. The Human Rights Act (HRA) gives civilians within the United Kingdom the chance to enforce these rights in British courts rather than having to incur the cost and impracticalities of taking a case to the European Court of Justice in Strasbourg.

The idea to depart from the Human Rights Act, and/or the Convention has been around for some time; in 2007 Nick Herbert said during a Conservative party conference that it was time to “… scrap the Human Rights Act and replace it with a British Bill of Rights that sets out rights and responsibilities … and which allows us to take the action we need to defend our citizens against serious crime and our country against terrorism.” This has recently been echoed, rather assuredly, by the current party leader, Theresa May. In April last year during her stint as Home Secretary, she firmly stated her opinion on the country’s membership of the ECHR:

“We can protect human rights ourselves in a way that doesn’t jeopardise national security or bind the hands of parliament…A true British bill of rights, decided by parliament and amended by parliament, would protect not only the rights set out in the convention, but could include traditional British rights not protected by the ECHR such as the right to trial by jury.”

She attacks the Convention by using the same arguments we heard crop up time and time again during heated debates over Brexit: sovereignty. Using the not-so original metaphor of parliaments hands being tied, May tells the British public that we can be free to protect our citizens’ rights in a way which does not conflict with national interests. Nigel Farage used the same tactic of persuasion in his reasoning for leaving the EU; we would be free to make our own rules.

In ‘The Conservative Party, Protecting Human Rights in the UK’ (October 2014) the Conservative party asserted its intention to repeal to Human Rights Act and to replace it with a British Bill of Rights. Of course, the Human Rights Act could be replaced whilst we remain a member of the Convention, yet the party document states that the UK will treat rulings of the European Court of Human Rights as ‘advisory’ and withdraw from the Convention system if the Council of Europe did not accept this approach. With May as head of the government, the push for ‘Convexit’ could be stronger than ever.

The emblem of  the Court of Justice of the European Union

However, one instrumental difference between the departure from the EU and the ECHR should be noted. Leaving the EU, the right-wing argued, meant that we could potentially improve the lives of our own citizens through, for example, limiting immigration so that there were more resources and available for current inhabitants. Repealing the Human Rights Act and departing from the European Convention would enable our courts and government to make decisions which protect our interests as a nation, but not necessarily for the individual. May argues that a Bill of Rights would encompass Convention rights and beyond. However, there would be more discretion to depart from these rights. Currently, under HRA procedure, all legislation (including primary acts of parliament) must be interpreted compatibly with ECHR rights. Scrapping the HRA would remove this obligation and mean that, for example, certain legislation could be immune from such obligations. Whilst the HRA aims to balance parliamentary sovereignty and protection of convention rights, a new Bill of Rights could sway the balance away from protecting rights and towards upholding Parliament’s unrestrained power.

There is an argument, however, that the case put forward based on sovereignty will never be as powerful as it was during Brexit. This is because EU law has a status hierarchically above that of domestic law- referred to as a ‘new legal order’ (Case 26/62 Van Gend en Loos [1963] ECR 1). In less dramatic terms, this means that EU law could be invoked before a court without implementation by member states; it has direct effect. This is not the case with Convention rights and decisions of the European Court of Justice- the HRA sought to unmistakeably ensures this. Section 2, which lays out the requirements of English courts, does not necessarily require domestic judiciaries to follow Strasbourg judgements.

Yet, this may be a premature concern. The current hurdle for Parliament is Brexit. Saying goodbye to the EU will leave a huge gap in our legislation which needs to be filled in order to continue to protect rights originally conferred by the EU. Further Consultation on a British Bill of Rights was scheduled to commence by December 2015 but this did not take place; in the wake of the Brexit, plans for the Bill of Rights have been further delayed. Nevertheless, ‘Convexit’ is something to bear in mind. We don’t want to be left with another horrendous ‘hungover’ feeling after making a bold decision to commit ourselves to follow the path of domestic supremacy without seriously considering the similarities and differences of leaving the EU and the ECHR. It is simply not enough to get swept away in the trend of waving a British flag and parting ways with our international intrusions.

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