The Future of the UK human rights without the European Union

is uncertain and vague. Discuss the impact of Brexit on the UK

Introduction:

Personal freedom, autonomy, and morality are important variables in world community. As a
result, the proclamation of human rights is essential for human survival and growth. Human
rights are fundamental rights and advantages to which everyone is guaranteed, regardless of
ethnicity, sexuality, faith, or colour. These rights are essential to maintaining a fair and
civilised society since no one is born with more privileges than another. Since the 1215
Magna Carta, the United Kingdom has had a lengthy history in the development of human
rights. Every nation has a written constitution that guarantees them fundamental rights. The
residents of the United Kingdom, however, do not have such a right because the country
lacks a codified constitution. The British Parliament enacted the HRA in 1998, and it went
into effect two years later (Kavanagh, 2009).

It incorporated the European Convention on Human Rights (ECHR) provisions into local UK
legislation, which Britain played a vital role in creating. The Human Rights Act of 1998
gained Royal Assent on November 9, 1998, however it was not completely implemented until
October 2, 2000. A few of the convention's freedoms and rights had become part of English
domestic law, allowing them to be enforced effectively in British courts. These are national
instead of international rights, with the 1998 HRA serving as the source instead of the
Convention. The Act's goal is to guarantee that a collection of essential human rights,
enumerated in the Act, are properly recognized and implemented throughout the United
Kingdom (Donald and Leach, 2016).

The European Convention of Human Rights:

The newly established United Nations approved the Universal Declaration of Human Rights
in 1948. These were presented in the form of broad guidelines. A regional institution, the
Council of Europe, was established under the United Nations in 1948, and it developed the
European Convention on Human Rights (ECHR), which was adopted in 1953 and provided a
more extensive interpretation. In terms of applicability and implementation, it goes far further
than the UDHR. One of the goals of the Convention was to clarify the responsibilities of
Council membership. The ECHR's jurisdiction extends to 47 countries that are members of
the Council of Europe; hence it is not restricted to the EU's 27 members (Donald and Leach,
2016).

The Human Rights Act 1998 adapted some of the provisions under the ECHR. Some of the
rights are: Article 1 – obligation to respect rights, Article 2 – right to life, Article 3 –
prohibition of torture, Article 4 – prohibition of slavery, Article 5 – right to liberty and
security, Article 6 – right to a fair trial, Article 7 – no punishment without law and more
Articles from 8-14. The ECHR's rights have been enhanced throughout time by a number of
Protocols to the Convention. All of these Protocols have not been approved by the United
Kingdom (Donald and Leach, 2016).

Bill of Rights:

Because the ECHR is an international law that incorporates laws from a variety of nations,
those implementations are brought to the UK. As a result, Conservative Party leader David
Cameron declared in 2006 that the Act will be repealed and replaced with a modernised Bill
of Rights. Supporters of a British Bill of Rights argue that the HRA gives 'non-elected' judges
too much authority, and that limiting that jurisdiction will restore parliamentary supremacy.
The Conservative Party's 2015 manifesto promises to substitute the HRA with a British Bill
of Rights in attempt to remove the statutory connection among British courts and the
European Court of Human Rights and establish United Kingdom’s Supreme Court the final
judge of human rights disputes. In their 2017 manifesto, the Conservatives declared that they
would not change or abolish the HRA while the Brexit vote was ongoing, but that once the
UK had left the EU, they would evaluate "their human rights legislative process." The 2019
manifesto promised to establish a Constitution, Democracy, and Rights Commission within
the year to provide amendments (EachOther, 2021).

The Charter of Fundamental Rights:

Despite the fact that the United Kingdom having left the European Union, there is no direct
link among its participation in the ECHR and its former participation in the European Union.
The ECHR is still established in British law thanks to the Human Rights Act. The European
Charter of Fundamental Rights (ECFR), on the other hand, will cease to apply in the UK,
bringing together certain democratic, social, and economic rights of persons residing in EU
member states and codifying values incorporated in EU law (Lock, 2017).

Before Brexit, human rights scenario in the United Kingdom was marked by relative
synchrony in human rights protection due to substantial similarities between the Charter of
Fundamental Rights and the Human Rights Act. With the Lisbon Treaty in 2009, the Charter
of Fundamental Rights became legally binding and had the same status as the European
Union Treaties. Yet, it did not include basic rights in EU law, whom the CJEU has always
defended as basic rules of EU law. The Charter reflects all of the Convention rights presently
assured by the Human Rights Act, which in turn provides implication to the majority of the
right in the ECHR that the UK is required to follow. In reality, according to Article 52 (3) of
the Charter of Fundamental Rights, the interpretation and extent of Charter rights that
relate to those in the ECHR must be the same as ones set down inside the Convention (Lock,
2017).

This similarity between the HRA and the Charter is limited, first because the Charter protects
fundamental rights in a broader sense, and secondly because the Charter's range is restricted.
It only applies to Member States "where they are enforcing European law," as per Article 51
(1) of the Charter. The Court of Justice of the European Union (CJEU) has construed this
extensively to suggest that they must respect Charter rights whenever operating under EU
law. This is the situation whenever a Member State acts in accordance with an EU legal duty,
such as executing a regulation into national legislation or when a Member State violates one
of the EU's basic freedoms (Lock, 2017).

The European Charter of Human Rights is linked to EU law, which means it can be used in
UK courts because of Section 2 (1) of the European Communities Act 1972, which directly
implements that EU law is relevant and enforceable. The Charter's application under UK law
is predicated on the ECA 1972, which was expected to be abolished with Brexit. The EU
Charter has never been applied to a non-EU member state, and it will no longer apply to the
UK after Brexit. The main distinction between both the ECA and the HRA is that repealing
the HRA would not instantly place the UK in violation of the European Court of Human
Rights (ECtHR), but would simply restore the position as it was when it was enacted (Lock,
2017).

The Supreme Court decided in Miller that the ECA constitutes EU legislation as a completely
new, autonomous, and dominant source of domestic law, implying that its acceptance in UK
law is contingent on the EU's Fundamental Human Rights Convention (ECHR) continuing to
apply to the UK. Even modifications to EU law's exterior obligations, such as exit from the
EU, were subject to the Miller judgment, which demanded approval from Parliament (Lock,
2017).

Brexit will almost certainly result in the loss of rights now solely protected by the European
Charter of Human Rights and Fundamental Freedoms (HRA), as well as concrete rights
deficits for EU nationals living in the UK. Some of these rights and protections are
recognized in domestic law as well as in ECtHR case law.

In Google Spain, which expanded articles 7 and 8 of the Charter to provide a "right to be
forgotten," demonstrates the CJEU's willingness to strengthen the basic right to data
preservation. Individuals were entitled to use their Charter rights against a commercial
provider once the CJEU declared internet search engines to be data handlers under Directive
95/46 (Horne and Conway, 2018).

The CFR addresses a wider range of human rights issues than the Convention. Examples of
this can be the fact that Article 20 of the Charter grants for an independent right to equality
before the act is an instance of this. While Article 14 of the ECHR similarly forbids
discrimination, it is not self-contained since it demands a claimant to show a relationship to
another ECHR right. In the instance of Google Spain case, the Charter's right to personal data
protection is more wide than the ECHR's equivalent right to privacy, which is guaranteed
under Article 8. Cases like Schrems and Digital Rights Ireland demonstrate the necessity of
EU data protection legislation (Horne and Conway, 2018).

Withdrawal of United Kingdom from the European Union:

On June 23, 2016, a vote in the United Kingdom determined that the United Kingdom would
exit the EU. Unexpectedly, 51.9 percent of voters voted for the United Kingdom to leave the
European Union, triggering Brexit (BBC, 2016). Afterwards, a 'Brexit Bill' was enacted, and
on March 29, 2017, May activated Article 50 of the Treaty on European Union. After then,
the withdrawal process was formally launched, and discussions between the United Kingdom
and the European Union began (May, 2017). Following the Brexit vote, the government has
made it plain that it planned to utilize their Prerogative powers to invoke Article 50 TEU
without the participation of Parliament. It was denied by the Supreme Court which ruled at an
eight-to-three majority, ruling that the Government must obtain an act of Parliament to
activate Article 50 on January 24, 2017 (Author and Oomens, 2017).

The Government released a 137-word bill named "European Union (notice of withdrawal)
Bill" two days following the Supreme Court's decision. This bill gave the Prime Minister the
power to tell the EU of UK’s decision to leave (Buckle, Ross & Morales, 2017).

The CJEU ruled on October 3rd, 2018 in Wightman et al. v. Secretary of State for Exiting the
European Union that the United Kingdom was allowed to arbitrarily rescind the notification
of its aim to pull back from the European Union under Article 267 of the Treaty for the
Functioning of the European Union (TFEU) (Azaria, 2019). Finally on 23 January 2020, the
EU (Withdrawal Agreement) Act 2020 was given Royal Assent which incorporated the
UK-EU Withdrawal Agreement into the UK law.

Human Rights after Brexit:

Despite the fact that the United Kingdom has left the European Union, it remains a signatory
to the European Convention on Human Rights (ECHR). In 2019, the EU and the UK agreed
on a political declaration (PD) that described the nature of their future relationship, stating
within 'core principles and freedoms', The future relationship should include the United
Kingdom's ongoing obligation to respect the foundation of the European Convention on
Human Rights (ECHR), while the European Union and its Member States will proceed to be
obligated by the Charter of Fundamental Rights of the European Union, which reinforces the
rights resulting, in specific, from the ECHR. For the time being, the United Kingdom is
committed to upholding its present commitments to international human rights treaties and
conventions, including the ECHR (Ali, 2021).

Conclusion:

Finally, because the European Convention on Human Rights exists, it may be claimed that
the UK's Human Rights are not vague and unclear after Brexit. However, it is true that the
citizens of the United Kingdom's Human Rights have weakened since Brexit. It is also
obvious that if the Bill of Rights substitutes the Human Rights Act by which the Human
Rights Act may become more ambiguous and unpredictable.

Total Number of Words in this Assignment is 1890.

Human Rights Act 1998

European Convention of Human Rights

European Charter of Fundamental Rights

Cases:
R (on the application of Miller and another) v Secretary of State for Exiting the European
Union (2017) UKSC 5

Google Spain Case C-131/12

Wightman et al. v. Secretary of State Case C-621/18

Books:

Donald, A. and Leach, P. (2016). Parliaments and the European Court of Human Rights.
Oxford: Oxford University Press.

‌
Kavanagh, A. (2009). Constitutional review under the UK Human Rights Act. Cambridge ;
New York: Cambridge University Press.

‌
Journal, Article and Website:

Ali, A. (2021). European Convention on Human Rights (ECHR) Does it Still Apply After
Brexit? [online] Lexology.com. Available at: https://www.lexology.com/library/detail.aspx?
g=7e0577d5-e617-471a-8e00-5c964741965c.

‌
Author, E. and Oomens (2017). The process of withdrawal from the European Union Great
Britain’s path to European Union membership and the Brexit. [online] Available at:
https://essay.utwente.nl/73741/1/Oomens_MA_BMS.pdf [Accessed 23 Apr. 2022].

‌Azaria, D. (2019). Wightman et al. v. Secretary of State for Exiting the European Union.
American Journal of International Law, 113(4), pp.799–805.
‌ BC. (2016a). EU Referendum Results.
B
http://www.bbc.com/news/politics/eu_referendum/results.

Buckle, E., Ross, T. & Morales, A. (2017, January 26). U.K. Lawmakers given two weeks to
debate short Brexit Bill. Bloomberg.
https://www.bloomberg.com/news/articles/2017-01-26/u-k-commons-to-complete-debate-on-
article-50-bill-in-two-weeks.

EachOther. (2021). Part Four: The Future of Human Rights in the UK. [online] Available at:
https://eachother.org.uk/part-four-the-future-of-human-rights-in-the-uk/ [Accessed 23 Apr.
2022].

‌
Horne, A. and Conway, M. (2018). Parliament and Human Rights. SSRN Electronic Journal.

‌
Lock, T. (2017). Human Rights Law in the UK after Brexit. SSRN Electronic Journal.

Lang, A., Miller, V., Harari, D., Kennedy, S. & Gower, M. (2016, May 26). EU referendum:
summary and analysis of the new Settlement for the UK in the EU. House of Commons
library Briefing paper no. 7524