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The human rights of British citizens post-Brexit are on a shaky footing, write Cherie Blair and Claire Kerschensteiner

The United Kingdom is leaving the European Union. Upon departure, the government will no longer have to comply with the Charter of Fundamental Rights, the human rights treaty of the EU. Currently, violations of these rights, like other provisions of EU law, are referred to and decided by the European Court of Justice (ECJ) in Luxembourg.

However, when most people think of human rights courts, they have in the mind the European Court of Human Rights (ECtHR) in Strasbourg. The UK’s membership of the ECtHR comes courtesy of its membership of the Council of Europe, which the UK has no plans to leave. This court deals with violations of the European convention of human rights (ECHR), which is transposed into UK law through the Human Rights Act 1998. Unlike the ECJ in Luxembourg, Strasbourg is a human rights only court where individuals can bring cases directly against governments.

Although the rights contained in the charter and the ECHR largely mirror each other, many of the EU charter rights go beyond the protections in the ECHR, including the right to fair and just working conditions, the right to preventative healthcare and the right to good administration.

Perhaps the most important distinction between the two instruments is that UK courts are obliged to follow ECJ rulings but must only ‘take account’ of ECtHR decisions in Strasbourg. Post-Brexit, the domestic courts will regain their sovereignty because they will no longer be bound to follow the decisions of the ECJ in Luxembourg. Given the vociferous reaction to the supreme court’s decision in R v Miller that article 50 could only be triggered by a parliamentary vote, one wonders whether this newfound independence will expose the courts to further opprobrium by  those who wanted to ‘take back control’? Once blame for controversial judgments can no longer be laid at the door of judges on the continent, against whom will it be directed?

The prime minister has long wanted to encapsulate human rights provisions in a British bill of rights. Despite forming a fundamental part of the Conservative manifesto, this idea has been kicked into the long grass and, for now, it appears that the UK will keep the Human Rights Act. Following Brexit, human rights cases will still be brought to Strasbourg, except the ECtHR’s rulings will not bind the government or, indeed, the supreme court.

The report of the joint committee formed to investigate the human rights implications of Brexit highlighted the ‘unacceptable’ reluctance of the government to discuss the issue. Like much relating to the government’s plans for Brexit, we simply do not know what is planned. This includes urgent questions relating to the rights of residence for those already in the UK, the future applicability of the developing case law on data protection and privacy, and the role of the devolved nations.

The UK’s need to sign trade agreements with Europe post-Brexit will likely keep standards stable but given that the UK constitution provides no way to entrench human rights, the loss of oversight from the EU and the revocation of the charter leaves the rights of British citizens on a shaky footing. From being set in stone, their rights are now as secure as words written in sand.  

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Cherie Blair CBE, QC is chair of Omnia Strategy LLP

Claire Kerschensteiner is an associate of Omnia Strategy LLP

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