Once Brexit is put into effect, human rights guarantees offered by the EU will cease to apply. This loss of human rights protection will be mitigated as long as the UK continues to be a member of the European Convention on Human Rights. Solon Solomon asks whether the time has come for the UK to leave also the European Court of Human Rights

Solomon, Solon

LSE Research Online

29/06/2017Has the time come for the UK to leave the European Court ofHuman Rights too?blogs.lse.ac.uk /brexit/2017/06/29/%ef%bb%bfhas-the-time-come-for-the-uk-to-leave-also-the-european-court-of-human-rights/Once Brexit is put into effect, human rights guarantees offered by the EU will cease to apply. Thisloss of human rights protection will be mitigated as long as the UK continues to be a member ofthe European Convention on Human Rights. Solon Solomon asks whether the time has comefor the UK to leave also the European Court of Human Rights.The announcement that legislation will be enacted to address the gaps that will emerge afterBrexit in a whole range of different fields – spanning from agriculture, trade to the imposition ofinternational sanctions – brings to the forefront the impact Brexit will have on human rights. OnceBrexit is put into effect, the guarantees for human rights protection offered by the EU Charter of Fundamental Rightswill cease to apply.At the same time, the impact on the status of human rights protection in the United Kingdom will be mitigated as longas the country continues to be a member of the European Convention on Human Rights and to the European Courtof Human Rights. Although plans for repealing the Human Rights Act 1998 were not included in the Queen’s speech,nothing can preclude that the change in circumstances will not see the UK leaving the Strasbourg jurisdictiontoo. This is possible for two main reasonsFirst, David Lidington, the new Secretary of State for Justice, has demonstrated in the past his willingness to repealthe Act. Secondly, such a step should be considered possible based on the prominent role security issues will cometo play once the dust over the forthcoming Brexit negotiations subsides. The Prime Minister has expressed herwillingness to rip up human rights legislation if needed on national security grounds and the European Court ofHuman Rights could potentially pose an obstacle to her plans. The Court has clashed with the United Kingdom inthe past in a number of issues, ranging from prisoners’ voting rights to stop and search, and the UK has threatenedalready in the past to quit the Court’s jurisdiction in the realms of the Abu Qatada case, where the country was notlet by the Court to extradite Abu Qatada to Jordan without receiving diplomatic assurances.The Tories included in their manifesto the pledge to enact a British Bill of Rights, but reports in the press have hintedthat the Prime Minister will abandon such plans after Brexit. If the UK leaves the European Court of Human Rights,this will create a legislative normative gap which courts will be called to fill in. This would run contrary to the idea ofBrexit, namely the return of national sovereignty to the people. In Israel, which like the United Kingdom does nothave a single written document as its constitution nor a Bill of Rights, in what has been termed as the ‘constitutionalrevolution’, the country’s Supreme Court has intervened many times in order to ascertain rights – like the right toequality – which has been included in Israel’s Declaration of Independence but not as a right per se in another pieceof legislation.Moreover, even if such a British Bill of Rights were to be considered an option after Brexit, its enactment should notbe seen as a simple, non-time consuming procedure. Human rights express first and foremost social and classtensions. Under the particular synthesis of the current Parliament, with a minority Conservative government in place,it is difficult to fandom how legislation on human rights could not be passed without ferocious debates regarding boththe character of these rights as well as their content. Such tensions could, for example, emerge in the form of thequestion of whether or not socio-economic rights should be included in a Bill of Rights. Initially deemed to be non-justiciable, such rights have found now their place as legal norms, yet their exact place in a cardinal legal documentsuch as a constitution is still disputed. For example, the New Zealand Bill of Rights implements only the civil and1/3political rights contained in the International Covenant on Civil and Political Rights, although New Zealand hasequally ratified also the International Covenant on Economic, Social and Cultural Rights. In the constitution of Indiasocio-economic rights constitute ‘guidelines’ whereas, in the realms of the EU Charter of Fundamental Rights, theEuropean Court of Justice has seen in paragraph 45 of the AMS case these rights as entailing more measures inorder to be rendered fully effective.The difficulties that would erupt in the enactment of a British Bill of Rights are demonstrated also through theexample of the Israeli legal reality, where efforts to draft a constitution and a Bill of Rights have been going onunsuccessfully since the country’s establishment due to the political and social fractions.Leaving the jurisdiction of the Strasbourg court would bring legaluncertaintyLeaving the jurisdiction of the Strasbourg court would bring legal uncertainty to the UK. This brings us to the nextquestion, namely whether if it were conceded that staying in the Court’s jurisdiction would better serve the country’snational interest, the UK would be able to address the contemporary security challenges inside the existingframework of the European Convention on Human Rights. I believe it would. First of all, if the UK were to file aderogation statement under article 15 of the Convention, there is no reason to assume that as in past cases, theCourt would not be ready to accept the legality of such a declaration. Secondly, even if the UK opts not to derogateand take some measures against terrorist threats, it is plausible to assume that their legality could be equallyaccommodated. In the Hassan judgment, concerning the application of Article 5 regarding detention in times ofwarfare, the Court demonstrated how human rights law can be reconciled with the laws of war beyond a derogationframework.At the same time, it has to be conceded that while the debate over anti-terrorist measures involving extensivesurveillance, arrests and detentions can be accommodated by revisiting the relevant discussions and argumentsposed before both the House of Lords and the European Court of Human Rights in cases like these of Gillian orBelmarsh, recent terrorist attacks represent a challenge to Strasbourg in terms of the legality of police actions duringa rampage.  Article 2 of the Convention permits the use of force in self-defence as long as such use is proportional.In the wake of the London attacks, where eight policemen fired 50 bullets against the terrorists, the proportionalitydebate could enter the realms. The London police took pains to argue that the policemen were caught by surpriseand thought the terrorists had real and not hoax suicide vests.This rhetoric of the police caught in surprise and not being able to assess correctly the real parameters in place ishighly reminiscent of the arguments in the McCann case. There, yet with a considerable minority opinion, the UKwas held accountable for its agents shooting and killing an IRA terrorist out of the mistaken perception that he had agun and he would fire at them.Nevertheless, the transplanting of the McCann debate to the exigencies posed by the latest terrorist attacks missesthe point to the extent that in the realms of the current terrorist attacks, force is not used in order for policemen todefend themselves, but as the only way to halt an otherwise unceasing attack against defenceless civilians. Thenature of the attacks, as well as the asymmetry in the possession of weaponry between the attacker and theattacked, render the analysis on the legality of the police force in the classic, Article 2 terms, completelyunsatisfactory, without making such an analysis totally irrelevant. Along these lines, what is needed is a dynamicinterpretation of the existing provisions and on this account, the practice of other states facing similar incidents couldbe helpful.2/3Council of Europe in Strasbourg, France. Image by francois schnell, (Flickr), licenced under CC BY 2.0.A dynamic interpretation should not be precluded; only recently, implicitly responsive to the security concerns ofcertain countries seeing their asylum request mechanisms overwhelmed by the waves of asylum seekers enteringEurope, the Advocate General of the European Union’s court held that the Dublin Regulation arrangements,stipulating that the asylum request should be filed in the first safe country of entrance, could also accommodatescenarios in which the application was first lodged in a country outside the EU.In a world of legal complexities, the challenge for human rights lies in their ability to be seen not as vehicles for theimposition of an authoritarian state authority, but as able to encompass the understanding that modern situations liein a grey area that calls for new, legally creative solutions, without rupturing the existing legal framework. To theextent that the Strasbourg court sticks to this task, the new UK government can have no excuse for leaving theCourt’s jurisdiction and plunging the country into further isolation.This post represents the views of the author and not those of the Brexit blog, nor the LSE.Solon Solomon is a visiting lecturer at King’s College London Dickson Poon School of Law .Copyright © 2015 London School of Economics3/3

Has the time come for the UK to leave the European Court of Human Rights too?

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