Brexit and Human Rights
Part of the impetus for leaving the European Union was arguably to take back control over Human Rights law.
This explains why Section 5(4) of the European Union (Withdrawal) Act 2018 states expressly that the EU Charter of Fundamental Rights is expressly not to be part of European law for the purposes of defining "retained EU law" under the Act , that is to say, those parts of EU law at the time of Brexit which are to be retained as part of UK law following Brexit.
However, the EU Charter of Human Rights should not be confused with the European Convention on Human Rights ( the "ECHR") , which is separate from EU law, having been set up by the Council of Europe which is not part of the EU. The ECHR is not affected by Brexit and will continue to be in force in the UK following Brexit, having been incorporated into UK domestic law by the Human Rights Act 1998 (the "HRA 1998") promoted by Tony Blair's then Labour Government.
Enter stage left Lord Jonathan Sumption, a recently retired judge of the UK Supreme Court! Giving one of 2019's BBC Reith Lectures, Lord Sumption appeared to suggest that the European Court of Human Rights in Strasbourg may have overstepped the mark in permitting a broader interpretation of human rights, which by virtue of the HRA 1998 are deemed part of UK domestic law, than is appropriate for a supranational court to do. Lord Sumption seemed to recognise that certain matters such as protection from arbitrary death or repression and also such as freedom of speech and association and the right to take part in free and regular elections are appropriately part of the ECHR but to argue that the wider scope of human rights should be a matter for individual countries to decide or not whether they wish to adopt. He is reported as taking the view that, whilst it would be undesirable for the UK to withdraw from the ECHR, he could see no other option, if the broad scope approach of the European Court of Rights did not change.
In 2012, the European Court of Human Rights initially prevented the deportation from the UK of the radical cleric Abu Qatada to Jordan over concerns that the Jordanian authorities would use evidence obtained under torture against him. Given the notoriety that Abu Qatada had acquired in the UK, this decision provoked widespread outrage in the UK and the then UK Prime Minister, David Cameron, described the decision as "completely unacceptable".
David Cameron threatened to promote the repeal of the HRA 1998 and it appears that Lord Sumption may be suggesting a similar approach if the domestic impact of the ECHR cannot otherwise be contained. Some support for this approach has been given by the press- Jenni Russell, writing an Article in "The Times" of 6th June 2019 under the heading "We should take back control of human rights", is a self -admitted convert to this approach.
It is some years since the Qatada case but it appears that the Brexit debate may have ignited renewed doubts in the UK about Europe's role in human rights legislation.
Lord Sumption's views have not gone unchallenged and doubtless the human rights debate will continue.
