Steve Peers
*Adapted from comments made at the launch of Conor Gearty’s book On Fantasy Island: Britain, Europe and Human Rights
The future of human rights law in a post-Brexit UK starts with the fate of the Human Rights Act, the subject of Professor Gearty’s new book. On Fantasy Island provides a detailed analysis of the Act within its social, political, and historical context. It emphasizes both the legal intricacies and the human impact of human rights cases.
The book debunks the idea that common law provided adequate human rights protections before the Human Rights Act (HRA). Professor Gearty acknowledges historical examples like the Salvation Army’s right to protest poverty. However, he also highlights instances where individuals were denied basic rights, faced unjust convictions, or were at risk of wrongful execution under the then-existing system.
Furthermore, the book addresses misconceptions about the HRA, such as the notion that it grants judges excessive power over elected officials. Professor Gearty clarifies that courts in the UK, including the European Court of Human Rights, are unable to overturn Acts of Parliament based on human rights grounds.
The UK human rights system reflects a balance between parliamentary sovereignty and human rights protection, similar to systems in Canada and New Zealand. Given the UK’s historical legal traditions and its role in drafting the European Convention on Human Rights (ECHR), its human rights framework should be familiar and uncontroversial. However, public perception does not always reflect this connection to British legal heritage.
The Brexit context
Brexit’s impact on human rights has both legal and political dimensions. The EU Charter of Rights currently protects human rights in areas like data protection, discrimination, and asylum law, when an issue is linked to EU law. Notably, UK courts can use the Charter to set aside conflicting Acts of Parliament.
Post-Brexit, the ‘Great Repeal Act’ will incorporate EU law into UK law. However, questions remain about the continued applicability of EU Court of Justice case law, the status of the Charter of Rights, and the ease with which the UK government can amend or repeal these incorporated laws.
While the HRA debate is distinct from the Brexit referendum, it will unfold in a post-Brexit Britain grappling with its new global role. This context might lead those critical of EU influence to target the HRA next.
Professor Gearty suggests a new British Bill of Rights as a potential solution. However, given the current political climate, this seems improbable, especially considering leaked government proposals that aimed to weaken remedies and prioritize the interests of tabloid newspapers.
The current political discourse lacks depth, with both sides entrenched in their positions. This climate of political division, violence, and disregard for the rule of law does not bode well for constructive dialogue on human rights.
Towards a new defense of the Human Rights Act
Retaining the HRA requires a robust defense. While legal professionals must engage with the technicalities of the law, focusing solely on defensive arguments like the HRA’s inability to overrule Parliament is insufficient.
Instead, a compelling case for the HRA should highlight its positive impact. It has protected vulnerable individuals, including a gay man evicted after his partner’s death, the elderly facing neglect in care homes, and children suffering from abuse. The HRA provides recourse for families seeking answers about loved ones’ deaths and exposes wrongdoings like the thalidomide tragedy.
This emphasis on the HRA’s ability to secure justice and protect the vulnerable is crucial for its continued acceptance.
Photo credit: University of Essex