General election 2019: what are the prospects for UK human rights, and the Human Rights Act after the election?

In past elections, attitudes to the Human Rights Act have marked a clear dividing line between parties, with key figures within the Conservative Party often supporting repeal of it and withdrawal from the European Convention on Human Rights. This has become intertwined with arguments around Brexit. Frederick Cowell assesses potential points of contention with human rights law in this election, including over army prosecutions, and argues that disputes over the HRA are likely to be pushed down the road, only to resurface in 2020, during any transition period after leaving the EU, and as prospects of a No Deal Brexit resurface.

European Court of Human Rights. Picture:
CherryX / Wikimedia Commons/Creative Commons Attribution-ShareAlike 3.0 Licence.

Arguments about the 1998 Human Rights Act (HRA) have been limited so far in this election, which is odd given its status as the ‘Brexit election’. The HRA brings the European Convention on Human Rights (ECHR) into UK law, allowing rights to be adjudicated in UK courts and requiring UK judges to take into account the rulings of the European Court of Human Rights in Strasbourg. Passed by the Labour government in 1998 it has been often criticised for the way it changed Britain’s uncodified constitution.

As any first-year law student will tell you, leaving the European Union does not mean leaving the ECHR. Yet, the arguments in favour of leaving both often overlap. Public concerns about immigration have intersected with hostility to court decisions on the rights of foreign nationals suspected of criminal offences and asylum seekers trying to challenge the refusal of their claims. Arguments about sovereignty and the power of European institutions characterised the Brexit debate in 2016. Similar arguments were present in criticism of the implementation of the European Court of Human Right’s decision on the prisoners voting ban in 2011. Many of the actors in both arguments are similar as well; since 2006 the Conservative Party has explored different ways of repealing the HRA or withdrawing from the ECHR. For decades Conservative politicians have criticised both the European Court of Human Rights and the European Court of Justice for interfering in the UK’s sovereignty. This hilarious Bremmer, Bird and Fortune sketch about a politician from the Eurosceptic wing of the Conservative Party angrily confusing the European Court of Justice and the European Court of Human Rights as being ‘foreign’ could have been made word for word today – in fact it was originally shown on Channel 4 in in 1996.

Although the Conservatives formally dropped their proposal to repeal the HRA in 2016, arguments about it persist within the party. Dominic Cummings, one of the prime minister’s chief advisers, has said that he regards the UK’s membership of the ECHR as ‘unfinished business’ and warned that the continuity leave campaign were ‘coming for that next’. So, commitment to the HRA is rapidly splitting along leave-remain lines. The pro-Remain/anti-Brexit parties in this election are standing on policy platforms broadly consistent with the HRA. The Liberal Democrats’ policy platform contains nothing to suggest any policies that would be incompatible with ECHR rights. The SNP are committed to defending ECHR membership and securing it in the event of an independent Scotland. Labour are, understandably given the HRA is a historic achievement of theirs, committed to the retention of the HRA and ECHR membership. It is possible that there could be challenges to Labour’s public ownership plans under Article 1, Protocol 1 of the ECHR – the protection of property – but it is possible for nationalisations to be compatible with this provision depending on the legislative framework used to accomplish them.

Conservative proposals are, however, more complicated. The manifesto was launched this weekend, and a number of announcements pose points of potential conflict with the HRA. In terms of Brexit, because all Conservative candidates now support the current government’s ‘Deal’, by implication they support the Political Declaration of the Withdrawal Agreement which commits a future relationship to incorporating the ‘United Kingdom’s continued commitment to respect the framework of the European Convention on Human Rights (ECHR).’ On the face of it this makes a pledge to look at withdrawing from the ECHR, which was in the Conservative Party’s 2015 manifesto, near impossible. However, in January this year the parliamentary under-secretary of state for justice clarified that the government would ‘wait until the process of leaving the EU concludes before considering the matter further.’ This has led to concern that the possibility of repealing the HRA and leaving the ECHR is still an option under active consideration. The 2019 Conservative manifesto states they will ‘update’ the Human Rights Act, but is short on specifics.

In other policy announcements there have been some indications about where and how the Conservatives would like to update the HRA. Since 2016 the Conservatives have been exploring the idea of exempting the armed forces overseas from the HRA out of concern that service personnel face ‘vexatious’ claims. There is no easy way to do this and remain within the ECHR as it requires human rights are secured for ‘everyone within their jurisdiction’, which, as the European Court of Human Rights has clarified, includes cases where the military are stationed overseas. The emergency provisions in the ECHR that allow a state to derogate or limit the application of a particular right in times of emergency, whilst deferential to governments in relation to the designation of a national emergency, are not constructed in a way that allows for a government to exclude an entire category of claims. In the run-up to this election, the Conservatives refined this plan to focus on amending the HRA as part of a strategy of preventing prosecutions for historic actions in Northern Ireland. Again it is very unclear how this would be compatible with the ECHR with one solicitor describing it simply as ‘clickbait for Tory voters’. Professor of Law at LSE Conor Gearty has speculated as to whether these policies are a means of provoking a fight between the government and the European Court of Human Rights in order to strengthen the case for leaving the ECHR.

Another area where the Conservatives might make changes is in relation to the laws on the removal of foreign nationals from the UK. This was mooted by Theresa May in 2017 shortly before the election where she lost the Conservative Party’s majority. In the 2019 manifesto there are references to ensuring rights are not ‘abused’, which indicates some of these ideas have not gone away. There is, however, another big unknown in the future of the HRA and British membership of the ECHR. The Withdrawal Agreement transition period is set to terminate at the end of 2020. Most seem to think that this is far too short a space of time realistically to have negotiated an ongoing relationship with the EU. The transition period can only be extended by mutual agreement with the EU and the request to extend must be made by July 2020. After that No Deal becomes a real possibility.

In that political landscape, the Political Declaration ceases to be relevant, though it is highly likely that that the EU would insist on continued ECHR membership in almost any kind of future relationship, whether that happens at the end of the transition period or after a No Deal Brexit in December 2020. It remains to be seen whether, in the event that the Conservatives become divided over a future agreement with the EU in 2020, arguments about also leaving the ECHR return to the forefront of the Brexit agenda. For many Brexit supporters the two are interlinked. At the moment the Brexit Party has no stated position on the ECHR, although given UKIP’s previous position, and their stated preference for No Deal Brexit, it is likely that they would support ECHR withdrawal and HRA repeal. This could become significant if the Conservatives win a majority, but end up politically divided after formally exiting the EU and going into the transition period – old arguments about the ECHR might resurface.

This article gives the views of the author, and not the position of Democratic Audit.

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