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A British Bill of Rights Part II: Human Rights After Brexit

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About The Author

Rhys White (Regular Writer)

Rhys completed his legal studies at the Universities of Winchester (LLB) and Durham (Corporate Law LLM). Alongside his undergraduate studies, Rhys worked part-time in a boutique insolvency firm, learning firsthand the application of law in a commercial setting. Having recently won a scholarship from the University of Law, Rhys is to begin his professional legal qualifications in September 2019.

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When we achieve human rights and human dignity for all people - they will build a peaceful, sustainable, and just world.

Antonio Guterres

This article is Part II in a series on a British Bill of Rights. See A British Bill of Rights Part I: Bringing Rights Home.

In February of this year, Part I of this Article laid the foundations of how and why the Human Rights Act 1998 (HRA) came into being and its effect on UK courts. Furthermore, we explored the political tide for and against the continuation of the HRA post-Brexit.

Given the current political climate, Part II of this series will discuss whether a Human Rights statute is warranted or even wanted in the UK post-Brexit. If so, how would this legislation look? Would we keep the HRA? Alternatively, would it be suitable for the British Government to draft its own British statute, incorporating a collection of rights believed to be sacred and inextinguishable to the British public (rather than those rights deemed fundamental by the Human Rights Conventions)?

Origin of Rights

Though there has been little, if any, clarification on the legal position of the UK and the HRA post Brexit, academics and lawyers have been quietly working away over the last two years, trailblazing into somewhat of a nexus of legal rights deemed fundamental to British citizens. These professionals have drafted a Bill for a new set of rights which, unlike the HRA, covers those rights which many of us take for granted but are not protected by any single domestic statue.

These new rights encompass economic, social and cultural matters, namely:

  • The right to food;
  • The right to adequate housing;
  • The right to social security; and
  • The right to quality education.

As stated above, many of these rights are not incorporated into the UK statutory books, which is surprising since they derive from a post-WWII Treaty which the UK helped draft: The Universal Declaration of Human Rights Treaty 1948 (UDHR).

Article 22 of the UDHR states:

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

However, the UDHR itself is not legally binding, instead acting as a moral compass for signatory governments in relation to the tolerance and obligations owed to, and the general wellbeing of, their citizens. This lack of legal status upset British representatives at the United Nations (UN), who believed that such a Treaty should entail legal recognition. One does not have to think long or hard to understand the British representatives' position, since the UK and its allies had just prevented the global spread of fascism, a war based upon protecting the rights now found in this charter.

It was not until 1976 that many of the UDHR Articles gained legal recognition, with the introduction of the International Covenant on Civil and Political Rights (ICCPR), upon which the UK happily placed its name as a signatory. On closer examination, one will note a striking similarity between the HRA 1998 and the ICCPR; this is unsurprising given that the European Council is also a signatory to the Covenant and embodied much of the document into its Human Rights legislation. Ergo, it follows that much of the UDHR and ICCPR gain indirect legal authority in the UK through the ratification of the HRA 1998.

The rights that were not incorporated into the ICCPR, which comprise Economic, Social and Cultural rights, were drafted into their own convention – The International Covenant on Economic, Social and Cultural Rights (ICESCR). Combined, the ICCPR and ICESCR are known as ‘The Human Rights Pact’: together they include the principles and provisions on the affirmation and promotion of human rights, including their legal protection. The UK signed the ICESCR in 1968. However, unlike the ICCPR, which we have established gains its domestic legal effect through the HRA 1998, the ICESCR has never been incorporated into a domestic statue and therefore has no legal effect in the UK.

The Other Half

In short, it is the rights under the ICESCR (the ‘other half’ of The Human Rights Pact, if you will) that academics and lawyers are working to bring into domestic law via their draft Bill. A domestic statute which protects the rights of education, health, work, basic living standards, social protection, non-discrimination, and more.

The reasoning as to why a Bill, or for that matter a statute, which reflects the ICESCR rights has not been incorporated into the UK statute is two-fold.

First, a lack of unity and agreement between signatory states as to the administration and policing of these rights has led to a failure to agree upon an ‘Optional Protocol’ (in short, protocols offer agreed procedures as to how Covenants or Treaties should be legally administrated within signatory states).

Second, UK governments of past have advocated that rights mentioned in the ICESCR, although not incorporated into a single statute (like the HRA 1998), are protected via a combination of common law rulings and legislation. Therefore, the argument goes, no single inclusive statute is required. This claim is somewhat correct: for example, the Homelessness Act 2002, which bestows a legal obligation on local authorities to accommodate homeless persons, satisfies the right to housing. The committee behind the ICESCR, on the other hand, has noted that such an Act like the Homelessness Act does not incorporate all persons, only those individuals who fall within the statute's definition – as such, any individual outside the definition are deprived of this right. Irrespective of this gleamingly obvious linguistical flaw, the UK government claimed, in general:

that it had fulfilled its obligations under the Covenant and would not accept any charge of having evaded any of the ICESCR Rights.

Nevertheless, regardless of the UK’s viewpoint on the ICESCR, and the political stagnation at the UN table, some countries have incorporated ICESCR rights into their domestic jurisdictions. Finland, Canada, South Africa and Spain all have socio-economic rights protection written into their respective constitutions or statute books. On the face of it, the failure of the UN officials to agree on a protocol at the high-table seems to be an ill excuse for not ratifying ICESCR rights into domestic law. It would, therefore, point to one conclusion: that the UK government simply does not want to grant direct legal protection to ICESCR rights. This conclusion has been noted in several UN reports .

Human Rights in Modern Britain

It becomes apparent that, over time, the UK’s position on human rights protection has diverged from the views of the UN British counterparts 70 odd years ago. Could it be that some of these rights have lost importance?

This divergence in opinion on what rights are and whether they ought to be protected illuminates a very subtle but important concern that cannot be overlooked: human rights in the UK are subject to political pressures and judicial misinterpretation of societal morality.

So far, this article series has demonstrated the political frailty of human rights protection in the UK: our rights are subjected to political and democratic pressures, which in short determine how protected our rights are and, if you may, how protected we are from state intrusion, interference and incapacitation.

Brought in by New Labour at the end of the millennium, the HRA provided sanctuary to rights which, until then, had not been protected by any domestic legislation. Did this promise by Blair and Co. to protect human rights help win them the election? Maybe. It is now apparent, however, that the opposite is true; Part I of this article series gave numerous quotes from Eurosceptic MPs calling for the HRA to be abolished. Vote blue and away with the HRA.

Should our rights be used as voting chips in a never-ending political spat between Conservatives and Labour? Or should our rights be morally based, above the law, enshrined in our societies’ beliefs and practices? For whatever colour we may vote, we would all agree that our rights should not be undermined or deprived depending on the identity of the man or woman upon whom Her Majesty has bestowed the privilege to form a Government.

Furthermore, an accompanying issue with laws and Human Rights is their interpretation. Supreme Court Justice Jonathan Sumption has considered in great detail the interpretation and living doctrine of Human Rights from the position of the European Court of Human Rights and the Supreme Court. As societies’ beliefs and customs change, so do our rights which associate them. However, there are times when societal beliefs and legal rights are at conflict: most notable is the democratic right for citizens to vote in elections with the disenfranchisement of serving prisoners and the right to euthanasia. Both topics are sensitive within society and the law, and both actions remain illegal, regardless of societal beliefs on the matter. Rather than judges, lawmakers or politicians, is it not for us, the people, to decide what rights we wish to encompass into our society?

The rights of the people are not decided by the people; our right to rights is not owned by use, but owned by individuals whom many of us might not even know, elect or respect. That is not to say that these individuals have not created a better world as a result of the implementation of their take on and beliefs of human rights, but maybe their interpretation of rights is no longer suitable for our views on rights.

British Bill of Rights

Much has changed since 1998. Even more has changed since 1689 and the introduction of the Bill of Rights 1689 (1689 Bill), a document which sets out the constitutional contract between Monarch and Parliament.

Whereas the 1689 Bill failed to deal with the political, civil and human rights of its citizens, the HRA’s primary concern was the rights of citizens. However, given Brexit, the potential revocation of the HRA, the government's stance on ICESCR rights, and a document dating back to a pre-independent USA, it would seem unwise to rely on the 1689 Bill to protect our rights in modern society. This document would be of as much use in protecting the rights we have all come to claim as legitimate, natural and enduring as that of a chocolate teapot.

We need an instrument which can put an end to ‘elective dictatorship’, an instrument which can frustrate and prevent any elected government pushing through legislation which is fundamentally against our societal or human rights. In short, parliamentary sovereignty cannot include sovereignty over our rights.

A document, a single document, drafted from consultation with the people, for the people. A document which bucks parliamentary sovereignty dogma, enshrined and entrenched above the law, independent of all political affiliations, and yet tensile, incorporating the needs of society when society calls upon it. British citizens (as a collective) could pick the best parts of the UDHR which reflects their beliefs, disband any incomparable interpretational judgments from Europe, and, finally, decide on its own, self-proclaiming rights; moralistic in practice, legal in application.

Whereas the 1689 Bill regulated the relationship between Monarch and Parliament, a modern British Bill of Rights is required to regulate the relationship between Parliament and Citizen – A British Bill of Rights 2019: in other words, a modern-day Magna Carta.

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Tagged: Brexit, Human Rights

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