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Brexit: the human rights dimension

20 March 17

Our report on the second of the Law Society of Scotland's seminars on the key issues arising from the Brexit process, featuring three speakers with a special interest in the human rights aspect

by Peter Nicholson

What impact will Brexit have on human rights in Scotland, and the UK as a whole? This was the subject of the second of the series of seminars organised by Law Society of Scotland Research, considering specific areas of law and how the UK's relationship with the EU will affect it. (For a report on the first seminar, see Journal, December 2016, 42.)

Held at Glasgow Caledonian University on 23 February and chaired by Michael Clancy, the Society's director of law reform, the panel on this occasion comprised Nicole Busby, Professor of Labour Law and Head of School at the University of Strathclyde, Anthony Speaight QC, barrister at 4 Pump Court Chambers in London, and Dr Peter Geoghegan, writer and lecturer in journalism at the University of the West of Scotland.

Equality: the EU's role

All three speakers clearly regarded the current human rights framework as providing important protections, but to what extent does this depend on the European Union as opposed to the quite separate European Convention on Human Rights? In the opening presentation, Professor Busby noted that the latter contains what she labelled “mostly freedom rights” – while article 14 contains a prohibition against discrimination, it can operate only in conjunction with other rights under the Convention. It is EU law that drives equality legislation.

Equality is a fundamental principle underpinning EU law, she explained, with a number of articles of the Treaties being relevant especially to employment, and the EU's competence now extending to discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The Court of Justice of the European Union (CJEU) case law is also a significant influence. The UK's own Equality Act 2010 was passed within this framework, and “does a good job”. Apart from exceptions relating to equal opportunities, and since 2016 non-executive appointments to public boards, this is a subject reserved to Westminster.

Further strengthening the European Convention is the EU's Charter of Fundamental Rights, which incorporates the ECHR but updates some rights, recognising same sex marriage and including a standalone anti-discrimination provision.

Thus on Brexit there could be a substantial limitation or reduction of some rights. The interrelationships between the different schemes were very complex and the professor was unable to say whether the perceived threats were real or not.

As for Scotland, what was possible depended to an extent on political will. What would be in the Great Repeal Bill was unknown, and Scotland would have little power to deviate from it, but it could still legislate on human rights within its competency.

Power of the Charter

Anthony Speaight, a Conservative who said he had always been involved with pro-European organisations, took us further into the Charter of Fundamental Rights. Perhaps surprisingly, it had its origins when German conservatives became concerned at the influx of EU law without principles of fundamental rights.

Although addressed to the EU institutions and member states “only when they are implementing Union law” (article 51), the Charter has now become, in Speaight's words, “a tool of spectacular power in a way that nobody expected”. Due to shared competences, it has now been taken as applying “whenever something is within the scope of EU law” – which has a “dramatically different meaning”. The CJEU has applied it in holding that longstanding Swedish provisions containing penalties for non-payment of VAT amounted to double jeopardy, and to a UK case on the treatment of an asylum seeker even though the UK Government had purported to exercise a discretion not to apply EU law, as well as in the Digital Rights Ireland case ((2014) C-293/12; C-594/12), which struck down the Data Retention Directive.

If the European Communities Act is repealed, that route of challenge vanishes, he pointed out. But he argued that it would be “quite open to any part of the UK to adopt charters of rights”, and examples could be found in states around the world. And if we did adopt a UK Bill of Rights, could it be used to bring back some of the Charter principles?

Irish conundrum

The third speaker, Peter Geoghegan, focused on the Irish situation. Having been brought up near the border at a time when it was marked by security checkpoints – it is now “invisible” – he commented that it is “striking” how it has re-emerged as an issue.

It is not strictly true, he continued, that Brexit contravenes the Good Friday Agreement, but it “begs huge questions about the constitution”. Politics has also been “fundamentally changed”, because the largest party, the DUP, backed the (there) minority Leave side.

Regarding the border itself, there had been increasing integration between North and South, for example with energy supply, and it had rather “slipped off the national consciousness”. However, although Theresa May had said the border would be “as fluid and frictionless as possible”, awareness alone would not solve the problem, yet no one in Belfast or London seemed willing to contemplate a bespoke deal. The nature of the border was such that a security regime would be virtually impossible to put in place.

Dr Geoghegan pointed out that 43% of Irish agricultural trade goes to the UK; what would happen if 40% tariffs were imposed? There was a “tyranny of the majority” view running through Brexit, but he wondered, provocatively, if it might “end the last vestige of the British Empire itself”.

As for replacing the Human Rights Act with a British Bill of Rights, “Britishness” had its own connotations in Northern Ireland.

Could there be Irish unification? He thought a border poll “unlikely” in the short term, but “inevitable” in the longer. Result: an angry minority.

And with the ongoing talk of a second independence referendum in Scotland, to the Irish the whole situation looked rather chaotic. Yet with the Republic being possibly the UK's “one true friend in Europe”, Mrs May had snubbed an invitation to address the Dublin Parliament.

Questions from the audience then ranged over the International Covenant on Social, Economic and Cultural Rights (this is a matter of international law, and not enforceable in the same way as the European Convention and Charter), the Scottish Government's paper on the single market (no one had a suggestion as to how that might work, though it was noted that the Faroe Islands, part of Denmark, is now applying to join the EEA), and the position of the Channel Islands (currently part of the Customs Union but not the EU, and use this to advantage as an offshore financial centre).

The evening concluded with the audience splitting into groups to consider various human rights related questions.

The seminars are intended to inform the Society's thinking on the post-Brexit legal landscape and create a forum for continuing dialogue via social media. The next event is on 18 May 2017 on the subject of employment law, and will be held at the Society's offices in Edinburgh.

 

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