The government of the United Kingdom (UK) has recently stated that they might withdraw from the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR) after Brexit. The UK has been a party to the European Convention on Human Rights since its creation in 1950 and a member state of the ECtHR since its establishment in 1958. As part of the European Union, the UK has also signed the European Charter of Fundamental Rights. Post-Brexit, the European Charter will cease to be applicable in the UK states’ territories, but the applicability of the ECHR is yet to be determined.
As part of the European Union’s first submission for a new trade deal with the United Kingdom, the bloc stated that “continuing commitment to respect the ECHR” must be part of any deal after 1 January 2021. The EU added that the UK’s disregard of the ECHR should result in the automatic termination of any law enforcement and judicial cooperation in criminal matters. The UK government responded to the demand by saying that “the agreement should not specify how the UK or the EU Member States should protect and enforce human rights and the rule of law within their own autonomous legal systems”. British Tory officials have claimed that EU’s demands were inappropriate and that they “will uphold human rights in our way”. The same sentiment was shared by the former British prime minister Theresa May in 2016 when she said that the UK should leave the ECHR since it “adds nothing to our prosperity”.
The UK Human Rights Act (HRA) of 1998 gives effect to the ECHR in UK territory and is the primary legislative tool to uphold human rights in the UK. The HRA allows people to enforce their human rights in UK domestic courts and avoid having to go through the long process of seeking redress in the European Court in Strasbourg instead. The HRA affirms that UK courts “must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights”. Even though Brexit does not have an immediate effect on the UK’s membership in the ECHR, the decision to withdraw from the convention and revise the HRA may directly affect the protection of human rights in British states.
As part of the Conservatives’ 2019 manifesto, they promised to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”. Senior Tories have long claimed that the ECHR system has been abused, including by giving prisoners the right to vote. Dominic Cummings, Boris Johnson’s top aide, wrote in 2018: “If I get involved in politics again, then a referendum on the ECHR should be high on the agenda.”
The British Parliament will have to decide if any new bill of rights will continue to take into account ECHR case law and follow the protection standards set by the European Union as well as how relevant such precedent will be.
Victoria has a bachelor’s degree in law from Pontifícia Universidade Católica de São Paulo, an LLM in European and Global Law from Pompeu Fabra University in Barcelona and is now pursuing a MA in Human Rights at the University of Vienna. She is also enthusiastic about international humanitarian and criminal law.