A strange irony: How the EU withdrawal process ended up saving the Human Rights Act

Dr Frederick Cowell, Lecturer in Law, argues that the UK’s exiting the EU may have saved the Human Rights Act and secured Britain’s long term future as party to the European Convention on Human Rights (ECHR).

The Brexit process has in short pushed the UK government away from what was until recently a clearly stated policy – to repeal the Human Rights Act 1998 (HRA), replace it with a British Bill of Rights and eventually withdraw from the ECHR. Both a referendum on Britain’s membership of the EU and HRA repeal, were in the Conservative Manifesto for the 2015 General Election. Repeal of the HRA, which brings the ECHR into UK law and requires UK judges to take the decisions of the European Court of Human Rights into account, has been a stated aim of the Conservative Party since 2006. In fact its position on the HRA was clearer in its 2010 manifesto than its commitment to EU withdrawal. Coalition with the Liberal Democrats and the creation of the Commission on a British Bill of Rights appeared to kill the idea but in 2014 the Conservative Party Published its proposals for a British Bill of Rights to replace the HRA.

Entitled Protecting Human Rights in the UK it proposed breaking the link between UK courts and the European Court of Human Rights and withdrawing from the ECHR if that was not possible. If implemented this would have left the UK the only nation in continental Europe (apart from Belarus) that was outside the ECHR. It would likely have been incompatible with the Treaty on the European Union, which commits EU member states to respecting human rights, as defined by the ECHR, as a core EU value. However, as the 2014 policy document went onto note ‘our relationship with the EU will be renegotiated in the next parliament’ and if there were any problems with the UK’s new bespoke human rights agreement this would be addressed ‘as part of the renegotiation.’ Linking leaving the EU with ECHR withdrawal made sense in terms of political framing. Although being outside the EU has no bearing on ECHR membership – Norway and Switzerland are not EU member states but have been party to the ECHR for almost half a century – the European Court of Human Rights was considered another ‘foreign court’ in the newspapers and political circles that would go onto become the most enthusiastic Brexit supporters.

There is no evidence that renegotiating EU values so as to allow the UK to withdraw from the ECHR but remain in the EU, was ever seriously discussed during David Cameron’s attempted renegotiation of EU membership in late 2015. Given that both the EU Justice Commissioner and the President of the European Commission had indicated a few years earlier that any member state attempting to withdraw from the ECHR would raise concerns ‘as regards the effective protection of fundamental rights’, it is highly unlikely that Cameron would have been successful even if he had tried. After winning the 2015 General Election the entire project appeared to slow down; the then Justice Secretary Michael Gove promised proposals on a British Bill of Rights to repeal the HRA within months, but by the end of 2015 nothing had been published. By then academics and legal commentators had started to highlight the constitutional difficulties of HRA repeal, especially in relation to devolution, but the government continued to signal they were fully committed to HRA repeal.

In June 2016 when Theresa May became Prime Minister she was expected to continue with the policy – she was a long-time opponent of the HRA from her days asHome Secretary, when she infamously and incorrectly claimed that HRA had blocked her from deporting someone because of their pet cat. But in December 2016 the Attorney-General Jeremy Wright announced that HRA repeal was delayed until after the conclusion of Brexit. In the 2017 Conservative General Election Manifesto HRA repeal and ECHR withdrawal was effectively cancelled for the duration of the next parliament. This was far from popular among the Conservative Brexit supporters but the numbers in the 2015-2017 parliament made repeal difficult (a problem which worsened after the 2017 election). Also with all of the constitutional difficulties over Brexit there was little appetite to create an additional set of constitutional problems.

Since the autumn of 2017 the European Parliament has been clear that an important component of a future EU-UK relationship would be the UK’s continued ECHR membership. In the summer of 2018 the European commission draft report on future security cooperation again made membership of the ECHR an essential condition. Theorists of international relations and international law have argued that one the core reasons for states joining the ECHR was to create a form of democratic lock-in where the rights contained in it and the frameworks designed to protect them would be locked in place, in part because it would be hard for states to leave the Convention. Although it is superficially easy for a country to leave the ECHR, an exit mechanism is contained in Article 58 of the Convention and there no direct economic consequences to a state for doing so, the ECHR’s interconnection with other European institutions creates a layer of political restraints constraining exit. The prospect of an exit agreement was clearly used as a lever by the European Parliament in their March 2018 resolution, which required any future trade agreement to be in “strict accordance” with EU values, effectively keeping the UK in the ECHR.

This could be important for securing the HRA’s future because there remains a significant political appetite for its repeal. Human Rights campaigners in the UK are often reassured by polling showing that HRA repeal is not a high public priority. But polling taken over a number of years in response to controversial or high profile decisions from the European Court of Human Rights has identified a significant degree of sympathy for the arguments advanced by the ECHR’s critics. Many of the arguments ranged against both the EU and the ECHR deploy what Fiona de Londras calls the ‘new sovereigntism’ argument – the idea that states should only engage and comply with international courts as and when they want to. Dominic Cummings, the leading political strategist for the Vote Leave campaign, announced earlier this year that he wants a referendum on the ECHR, noting that many leave voters would be ‘mad’ when they realise the UK was still party to it. Given this context the external economic and political forces locking the UK into being a party to the ECHR as part of the Brexit process have probably secured the HRA’s future – for now.

This piece was first published on LSE’s blog

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Punitive Laws Undermine HIV Prevention Efforts

Some 34 million people globally are living with HIV.  Since 1981, when the first cases of what we came to know as AIDS were diagnosed in the United States, more than 60 million people have been infected and more than 30 million have died from AIDS-related causes.  The most recent data indicate that more than two million people a year are newly infected worldwide, the vast majority of these in the resource poor countries of the South, especially those of sub-Saharan Africa.  In Western and Central Europe there are some one million people living with HIV, of which approximately 100,000 are in the UK (with a quarter of these unaware of their HIV positive status).

It is a tragic indication of the impact that HIV and AIDS have had on our planet in the past thirty years that these morbidity, mortality and new infection figures represent something of an improvement.  The rate of new infections has fallen by almost a fifth since 1999 and appears to be levelling out; one-third of the 15 million people living with HIV in low- and middle-income countries have access to treatment.  Consequently, the number of deaths is falling, and the number of people living with HIV is stabilising.  To this extent the global AIDS response has been a success, and for this we should acknowledge not only the financial resources countries and individuals have made available, but the invaluable contribution of scientists, healthcare workers, academics, civil society organisations, international bodies such as UNAIDS and the World Health Organization and – most importantly of all – people living with, and affected by, HIV.  Without the concerted effort and dedication of all these actors and activists the individual, social and economic impact of the virus would be even more catastrophic than it has been.

Ruins-1000x55-logo-6Central to the success of these efforts has been the recognition that our response to HIV and AIDS must be informed by human rights principles, including the fundamental right to non-discrimination and the right to the highest attainable standard of physical and mental health.  HIV impacts disproportionately on those who are stigmatised, marginalised or who lack economic or social capital (men who have sex with men, women and girls, sex workers, migrants and displaced people, injecting drug users).  Prevention efforts, and access to treatment and care, will only be successful if those most at risk of infection, or already living with HIV, are given – and experience – the respect and support to which they are entitled as of right, without judgement.

Despite this, governments across the world persist in introducing, implementing and enforcing punitive and coercive laws which reinforce stigma and popular misconceptions.  One of the most egregious examples of this in recent years was the introduction by Greece’s Minister of Health of a law which resulted in the detention and forcible HIV testing of hundreds of women in Athens alleged to have been sex workers.   Those who tested HIV positive were charged with a range of serious offences (most of which were subsequently dropped or reduced), detained in inhumane conditions and had their photographs published in the national media.  The law that permitted this was unnecessary, disproportionate. and resulted in a gross violation of the right to respect for private life.  Introduced immediately before the hotly contested and contentious Greek elections of May 2012, many commentators suggested that the measure was a cynical gesture that played to populist sentiment in times of austerity.  It was condemned by national groups and activists, and by international organisations and health experts and was repealed in May 2013.  In July, however, it was reinstated – with the support of the Greek Centre for Disease Control, and to the dismay of those who thought reason had triumphed over prejudice.   The President of the International AIDS Society, Françoise Barré-Sinoussi (a co-discoverer of HIV), speaking at the Society’s conference in Kuala Lumpur this summer expressed her clear disappointment:

“As President of the IAS I strongly condemn this move and urge the Greek Government to rethink its position. HIV infections are already increasing in Greece due to the economic crisis and a mandatory policy of detainment and testing will only fuel the epidemic there.”

As yet, however, there seems to be no rethinking, and new infections in Greece increase at a rate significantly higher than elsewhere in the EU.

RUINS-poster-EN-web1Ruins, a documentary by Zoe Mavroudi about the Greek law and its impact on the women who were rounded up in 2012, had its UK première at Birkbeck on Friday 18th October, supported by the Birkbeck Gender & Sexuality (BiGS).  In it, Mavroudi shows the way in which economic austerity, fear and ignorance combined to produce a toxic cocktail which not only blighted the lives of individuals but has done serious harm to HIV prevention work in her country.  It is an important and timely reminder of the work that still needs to be done in combating HIV-related prejudice, and of the profoundly negative impact that punitive laws can have in the field of public health.

 

Professor Matthew Weait

Matthew Weait is Professor of Law and Policy at Birkbeck and Pro-Vice-Master (Academic Partnerships).  He has been a consultant to UNAIDS and the WHO and was a member of the Technical Advisory Group of the Global Commission on HIV and the Law (UNDP).  He co-founded the River House Law Clinic, which provides free legal advice to people living with HIV, and which is supported by student volunteers from the School of Law.  An article on this theme, “Unsafe law: Health, rights and the legal response to HIV”, based on his inaugural lecture, will be published in the International Journal of Law in Context in December 2013.

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