Has the time come for the UK to leave also the European Court of Human Rights?
The Queen’s speech and the announcement that legislation will be enacted to address the gaps that will emerge after Brexit in a whole range of different fields spanning from agriculture, trade and the imposition of international sanctions, brings to the forefront also the impact Brexit will have on human rights. Once Brexit is put into effect, the guarantees for human rights protection offered by the EU Charter of Fundamental Rights will cease to apply.
At the same time, the impact on the status of human rights protection in the United Kingdom will be mitigated as long as the country continues to be a member of the European Convention of Human Rights and to the European Court of Human Rights. Although plans for repealing the Human Rights Act 1998 were not included in the Queen’s speech, nothing can preclude that the change of the circumstances in the future will not see the UK exiting also the Strasbourg jurisdiction. Such a scenario can come into interplay for two main reasons.
First, David Lidington, the new Secretary of State for Justice, has demonstrated in the past his willingness to repeal the Act. Secondly, such a step should be considered possible based also on the prominent role security issues will come to play once the dust over the forthcoming Brexit negotiations comes to subside. The Prime Minister has expressed her willingness to rip up also human rights legislation if needed on national security grounds and the European Court of Human Rights could potentially pose an obstacle to her plans. The Court has clashed with the United Kingdom in the past in a number of issues spanning from the prisoners’ voting rights to the stop and search practice and the United Kingdom has threatened already in the past to quit the Court’s jurisdiction in the realms of the Abu Qatada case, where the country was not let by the Court to extradite Abu Qatada to Jordan without receiving diplomatic assurances.
The Tories have included in their manifesto the pledge to enact a British Bill of Rights, but reports in the press have hinted that the Prime Minister will abandon such plans after Brexit. In case the UK leaves also the European Court of Human Rights, this will create a legislative normative gap which courts will be called to fill in. This would run contrary to the idea of Brexit, namely the return of national sovereignty to the people. In Israel, which like the United Kingdom does not have a single written document as its constitution nor a Bill of Rights, in what has been termed as the ‘constitutional revolution’, the country’s Supreme Court has intervened many times in order to ascertain rights, like the right to equality, which has been included in Israel’s Declaration of Independence but not as a right per se in another piece of legislation.
Moreover, even if such a British Bill of Rights was to be considered as an option after Brexit, the enactment of such a document should not be seen as a simple, non-time consuming procedure. Human rights express first and foremost social and class tensions. Under the particular synthesis of the current Parliament, with a minority Conservative government in place, it is difficult to fandom how legislation on human rights could not be passed without ferocious debates regarding both the character of these rights as well as their content. Such tensions could, for example, portray themselves in the question of whether or not socio-economic rights should be also included in the Bill of Rights. Initially deemed to be non-justiciable, such rights have found now their place as legal norms, yet their exact place in a cardinal legal document such as a constitution is still disputed. For example, the New Zealand Bill of Rights implements only the civil and political rights contained in the International Covenant on Civil and Political Rights, although New Zealand has equally ratified also the International Covenant on Economic, Social and Cultural Rights. In the constitution of India socio-economic rights constitute ‘guidelines’ whereas, in the realms of the EU Charter of Fundamental Rights, the European Court of Justice has seen in paragraph 45 of the AMS case these rights as entailing more measures in order to be rendered fully effective.
The difficulties that would erupt in the enactment of a British Bill of Rights are demonstrated also through the example of the Israeli legal reality where efforts to draft a constitution and a Bill of Rights have been going on unsuccessfully since the country’s establishment due to the political and social fractions.
Leaving the Strasbourg court jurisdiction would bring legal uncertainty to the UK
Leaving the Strasbourg court jurisdiction would bring legal uncertainty to the United Kingdom. This brings us to the next question, namely whether if conceded that staying in the Court’s jurisdiction would better serve the country’s national interest, the United Kingdom would be able to address the contemporary security challenges inside the existing framework of the European Convention on Human Rights. I would like to argue in the affirmative for two reasons. First of all, in case the United Kingdom files a derogation statement under article 15 of the Convention, there is no reason to assume that like in past cases, the Court would not be ready to accept the legality of such a declaration. Secondly, even if the United Kingdom opts not to derogate and take some measures against the terrorist threats, it is plausible to assume that their legality could be equally accommodated. In the Hassan judgment, concerning the application of Article 5 regarding detention in times of warfare, the Court demonstrated how human rights law can be reconciled with the laws of war beyond a derogation framework.
At the same time, it has to be conceded that while the debate over anti-terrorist measures involving extensive surveillance, arrests and detentions can be accommodated by revisiting the relevant discussions and arguments posed before both the House of Lords and the European Court of Human Rights in cases like these of Gillian or Belmarsh, the challenge for the Strasbourg Court that the latest terrorist attacks in various countries put forth concerns the legality of the police force in incidents of continuing rampage. Article 2 of the Convention permits the use of force in self-defence as long as such use is proportional. In the wake of the London attacks, where eight policemen fired 50 bullets against the terrorists, the proportionality debate could enter the realms. The London police took pains to argue that the policemen were caught by surprise and thought the terrorists had real and not hoax suicide vests.
Such a rhetoric of the police forces caught in surprise and not being able to assess correctly the real parameters in place is highly reminiscent of the argumentation in the McCann case. There, yet with a considerable minority opinion, the UK was held accountable for its agents shooting and killing an IRA terrorist out of the wrong perception that he had a gun and he would fire at them.
Nevertheless, the transplanting of the McCann debate in the exigencies posed by the latest terrorist attacks misses the point to the extent that in the realms of the current terrorist attacks, force is not used in order for policemen to defend themselves, but as the only medium to stop an otherwise unceasing attack against defenceless civilians. The nature of the attacks as well as the asymmetry in the possession of weaponry between the attacker and the attacked render completely unsatisfactory the analysis on the legality of the police force in the classic, article 2 terms, without though at the same time such an analysis being totally irrelevant. Along these lines, what is requested is a dynamic interpretation of the existing provisions and on this account, the practice of other states facing similar incidents could be helpful.
Council of Europe in Strasbourg, France. Image by francois schnell, (Flickr), licenced under CC BY 2.0.
Such dynamic interpretation should not be precluded; only recently, implicitly responsive to the security concerns of certain countries seeing their asylum request mechanisms flooded in light of the large waves of asylum seekers entering Europe, the Advocate General of the European Union’s court held that the Dublin Regulation arrangements, stipulating that the asylum quest should be filed in the first safe country of entrance, could accommodate also scenarios under which such application is first lodged to another country beyond the country of entrance to the Union.
In a world of legal complexities, the challenge for human rights lies in their ability to be seen not as vehicles for the imposition of an authoritarian state authority, but as able to encompass the understanding that modern situations lie in a grey area that calls for new, legally creative solutions, without though rupturing the existing legal framework. To the extent that the Strasbourg court sticks to this task, the new UK government cannot have an alibi in exiting the Court’s jurisdiction and plunging the country in further isolation.
This post represents the views of the author and not those of the Brexit blog, nor the LSE.
Solon Solomon is a visiting lecturer at King’s College London Dickson Poon School of Law and teaching fellow on international human rights law at SOAS School of Law.