The last few days have seen a lot of speculation, speeches and commentaries on the future of the UK in the EU around the Continent. After the Scottish referendum next year, it is a possibility that the remaining UK will get a EU referendum within the decade.
If the result of that is that the UK does sever its ties to the European Union, there will be great political, diplomatic, financial and legal change for this nation as we regain our sovereignty in many areas.
If this jurisdiction leaves the European legal system, that would have an impact on our national legislation. However, what would be impact of that change on domestic human rights law? Initially, it may seem that- with most of our human rights law coming from Europe- that human rights here will be dramatically effected. The reality, though, is that legally such a separation would bring little change for human rights.
The UK is bound by relevant EU legislation (e.g. the Charter of Fundamental Rights of the European Union as enacted by the Lisbon Treaty) and regulations concerning human rights, but it runs deeper than that; the concept of and rules concerning human rights are now firmly embedded into British law. Since the introduction of the Human Rights Act 1998 (HRA), there has been a UK- as opposed to EU- statute and subsequent regulations governing human rights. A withdrawal from the EU would probably (though it is not certain) either nullify or have the potential to nullify our legal obligations and requirements to the Court of Justice of the EU (CJEU). However, national legislation such as HRA would not be affected; it is on our domestic statute books until it is repealed, leaving human rights unaffected by a withdrawal form the EU.
The European Court of Human Rights
Additionally, since the 1950’s the UK has been a signatory to the European Convention on Human Rights (ECHR); indeed, it was the UK delegation at the treaty talks led by lawyer Sir David Maxwell- Fyfe MP who was incredibly influential behind its drafting. It must be noted that this is is an international treaty which is outside the scope of the EU per se. So far, 47 nations have signed it- all in or adjoining the European region- but not all are members of the EU. As this country is till a signatory to the EHR, is represented in the European Court of Human Rights (the transnational court which administers and hears cases concerning ECHR), and has a keen and vested interest in the treaty. As such, even if the UK was to leave the EU, this country would still be involved in the ECHR, which, as has been mentioned, is an international human rights treaty independent of the EU. The result would be that our human rights obligations and regulations would not change.
A principle of law concerns the cases that go into court. The decisions in the courts are the basis for subsequent judicial decisions, as the rulings in cases are either applied, distinguished or over ruled by subsequent judgements in similar (or different) cases. The body of case law helps to shape the legal system and concepts that we have today. The rulings in the individual case have a impact in the development of the legal system and principles. For example, the House of Lords decision in the famous (in legal circles…) 1936 case of Donoghue v Stevenson provides the basis for many modern civil and tort liabilities and obligations.
Applying that concept, although human rights is a relatively recent area of UK law, after a raft of human rights cases coming before UK judges, the canon of case law now contains many binding legal decisions concerning human rights (R (ex parte Razzoqi) v Secretary of State for the Home Department, Assange v The Swedish Prosecution Authority, AAA v Associated Newspapers Ltd, etc). Consequently, human rights law is now firmly embedded in the UK legal system, independent of any legislation and cases emanating from the CJEU in Luxembourg. If the UK decides to leave the EU, such cases would still be a part of the UK legal system. The human rights case law in our domestic legal system, and the precedent they have set, would be unaffected by the UK leaving the EU.
It was as far back as Magna Cart in 1215, and the Bill of Rights in 1688 that the lawmakers of the time first had a glimmer and vague idea of the concept of we call now ‘human rights’. Detention without just cause, trial, and reason was first enshrined as habeas corpus in Magna Carta- and freedom of speech was first mentioned in the Bill of Rights. Since the end of the Second World War, the Uk has been quite active in the human rights arena, and has seen a vast expansion of human rights related cases, regulations and legislation. With such a heritage, with or without ECHR, or EU or UK legislation, it is unlikely that the pursuit of human rights and dignities will ever disappear,or be dramatically altered, in the UK legal system. This country may withdraw from the EU over the next decade- but our guiding principles of human rights will still flourish independent of any EU controls or encouragement.
If the UK withdraws from the EU, the government could repeal most aspects of EU legislation from the statute books, and repatriate more legal powers to the Supreme Court. However, the impact of human rights law, both domestically and EU related, over the last 50 years has been such that, in reality, any withdrawal from the EU would have very little effect on human rights law. Either way, for good or bad, human rights law is here to stay in this jurisdiction.
Article written by The Law Ninja