BY CONOR GEARTY 

It is not a misguided nostalgia for colonial control to say that developments in UK human rights law have long had an influence on Commonwealth jurisdictions, especially in those where there are continued close alignments with the common law. Australia is a particular case in point.  The Australian Capital Territory law on human rights, enacted in 2004, bears an obvious resemblance to its UK equivalent of six years previously, the Human Rights Act 1998. So does Victoria’s Charter of Human Rights and Responsibilities 2006.  The debates that have followed these two initiatives right across Australia have all been conducted against the background of the British initiative – it has been the 1998 law that has made, or at least helped set, the local weather in this field.

Big changes in the UK affecting human rights are therefore likely to matter disproportionately in Australia. This is especially the case if these fortify reactionary politicians (of whatever political party) in their distaste for the universalism that is at the core of the human rights ideal and of the human rights law that is its legal manifestation. Sadly for the proponents of equality of esteem for all, this is exactly what is happening in the UK. The Conservative Party promised in its manifesto before the General Election of 2015 to repeal the 1998 Act and it has not recanted on this commitment, only postponed it until the time is right, which in practice seems to mean after the country’s European divorce is finalised.  Human rights are likely to be severely eroded by this decision as well.  In this post I look at both of these areas before ending with some wider thoughts about what this might mean for other jurisdictions, including of course Australia.

The enemy within

Let me start with the Human Rights Act. How have things come to such a pass that repeal of this seemingly benign measure is more probable than not?  I would suggest three reasons in particular.

First, the Human Rights Act was friendless almost from birth, the then Labour government never choosing to defend its own legislation whenever it produced awkward cases and the then Conservative opposition scoring a series of easy wins against it as a result. It became normal to assume the Act was useless, a defender of bad people rather than the guarantor of important rights for all of us.

Second, the legislation quickly made powerful enemies. The right wing press did not at all like the law on privacy that it made possible, since this badly affected its capacity to make money from intrusion into the lives of celebrities at exactly the time that the potential of the internet as a rival source of gossip was being realised. Then the military became aware that the legislation reached outside the UK to force accountability for the ill-treatment not only of foreigners in conflict situations (torture; unnecessary killing) but of their own troops as well (bullying leading to suicide; poor equipment exposing privates to mortal attack; draconian punishments causing death etc). This led its leadership and the Department of Defence to adopt an increasingly hostile stance.

Thirdly and most fatally, the law got caught up in the anti-European wars that were beginning to get going in the UK in the mid-2000s.  In those now seemingly long-ago days, arguing to leave the European Union was for ‘fruitcakes, loonies and closet racists’ as the future Prime Minster David Cameron had put it in 2006. Given their isolation on the central question, these then marginalised Europhobes went after another, apparently easier target – the Human Rights Act, a statute whose crime was to take its content from the European Convention on Human Rights. As all lawyers know this Convention is a creature not of the EU but of the Council of Europe, but in the eyes of the sceptics it was merely yet another Continental assault on British freedom. Matters were not helped by occasional decisions of the European Court of Human Rights – set up to give this Convention teeth – which could be presented in a bad light at home, on the rights of suspected terrorists for example or (most infamously) the Court’s finding in 2005 that a universal ban on prisoners’ voting infringed one of the Protocol rights to the Convention proper.

Together with the antagonistic interventions of the media and the defence community, it was this proxy war on the main Europe through assault on its less invasive rights partner that produced the Conservative 2015 commitment to repeal of the Act, and even to the suggestion (made by among others the current Prime Minister Theresa May) that the UK should withdraw from the whole Convention system.  Of course this attack on the 1998 Act has now been somewhat pre-empted by the surprise success of the Brexiteers in last year’s referendum. It is becoming clearer by the day that while merely (and only possibly: see below) postponing repeal of the Human Rights Act, Britain’s exit from the EU will also inevitably entail further aggressive attacks on human rights that go well beyond the protections to be found in that 1998 measure.

The enemy of the people

The House of Commons Library Briefing Paper of 26 August 2016 summed up very well the potential impact of BREXIT on a wide range of rights-related laws:

The only relatively clear conclusion that can be drawn at this stage is that Brexit will allow for change to the following areas of employment law, which are underpinned by EU law:

  • annual leave
  • agency worker rights
  • part-time worker rights
  • fixed-term worker rights
  • health and safety obligations
  • state-guaranteed payments upon an employer’s insolvency
  • collective redundancy rights
  • information and consultation rights
  • the right to a written statement of terms and conditions
  • posted worker rights
  • paternity, maternity and parental leave
  • protection of employment upon the transfer of a business
  • anti-discrimination legislation

Furthermore, according to a later parliamentary research briefing while

[i]n some cases EU law has entrenched at an international level provisions that already existed in domestic law; for example, race discrimination and certain maternity rights … [i]n other cases, new categories of employment rights have been transposed into domestic law to comply with emerging EU obligations. These new rights were often resisted by the UK government during EU negotiations; for example, agency workers’ rights and limitations on working time..

And as that same report notes, ‘In many cases, the ECJ has enlarged the scope of rights beyond the limits that would have been set by domestic courts. Post-Brexit, UK courts would no longer be required to follow existing and future ECJ decisions, and may merely regard them as having persuasive force. A potential consequence of that approach may be the re-litigation of controversial judgments, such as those relating to the calculation of holiday pay.’

Along similar lines are the remarks of EU expert Professor Steve Peers to the effect that  ‘it is undeniably the case that EU law has significantly raised the level of employment and equality rights in the UK – particularly as regards equality for women in the workplace.’ His ‘study of all the cases reaching the EU court concerning UK law on these issues shows that 60% of all the EU court cases about equal treatment of women in Britain resulted in a finding that UK law breached EU law – therefore raising the standards of protection for women in the workplace. 62% of the other cases on workers’ rights led to the same result.’

In a legal opinion commissioned by the Trades Union Council the senior QC Michael Ford was even clearer:

in broad terms, and subject to the specific terms of a future trading relationship between the UK and the EU providing otherwise, a future Government would have a pretty much unconstrained freedom of action in relation to those areas currently governed by EU social law relevant to employment. From a legal viewpoint it would be required to give effect to almost no legal rights in this area. Other international treaties which embody provisions protecting workers, even those signed by the UK, such as the European Social Charter of 1961 and some Conventions of the International Labour Organisation (ILO), give workers far less legal protection than EU law against a deregulatory-minded executive. ….

Ford continues:

Provisions especially vulnerable to repeal in the name of deregulation or protecting business probably include …  legislation on collective consultation, which hardly fit with the current Government’s vision of the labour market; working time rules (a persistent thorn in the side of the UK Government, both Conservative and New Labour); some of the EU-derived health and safety regulations, the impact of which on employers the last government already sought to reduce; parts of TUPE, from which the Government has already tried to remove some ‘gold plating’; legislation protecting agency workers, which was long resisted by the UK and which is in tension with preferences for a ‘flexible’ labour market, as well as protections given to other ‘atypical’ workers; and some elements of discrimination law to which businesses object most strongly, such as uncapped compensation or high levels of liability for equal pay (and perhaps types of discrimination on which there is much less political consensus, such as age discrimination).

Written before the Referendum was held, Ford’s advice is stark:

If Brexit occurs, there will be no legal barrier to a Government legislating to create a labour market whose predominant feature is freedom of contract (for which read a legal system which permits the employer to dictate terms) – and in a context today where there is no longer the extensive collective bargaining coverage which can operate to correct the inequality of bargaining power between the individual employer or employee or to compensate for the absence of legal rights.

In support of his argument Ford cites  A Beecroft, Report on Employment Law (24 October 2011) ‘which, as well as advocating the introduction of “no fault” dismissal, also made clear its general opposition to labour market regulation in general, even going so far as to suggest the Government should risk infraction proceedings by not implementing the Agency Workers Directive. The report was apparently not adopted owing to opposition from the Liberal Democrats.’ .

So what will actually happen when the UK leaves? Are these comments from various experts unnecessarily alarmist?  The May Government’s White Paper on Exiting the European Union, published on 2 February this year is at first glance promising from the rights point of view.  It commits the government to carrying forward EU law at the date of departure.  While changes to immigration and customs law are to be made only by primary legislation, however, all the rest are vulnerable to be altered by secondary legislation where the laws in issue ‘would otherwise not function sensibly once we have left the EU’.  In such circumstances the parliamentary oversight that is envisaged will be minimal, most likely a single vote on a set of wholesale changes that are collectively asserted to be sensible by Ministers. These products of the largest of ‘Henry 8th clauses’ imaginable (Parliament ‘taking back control’!) are the probable means by which environmental, food, health, human rights and other socially- oriented EU and EU-inspired laws are likely to be at best debilitated, at worst shredded.

But once again even given the procedural possibilities why should this be likely as a matter of policy?  The same February White Paper has a whole chapter devoted to ‘Protecting workers’ rights’ and commits the government ‘to strengthening rights when it is the right choice for UK workers …’. But how can this be the ‘right choice’ when a post BREXIT UK finds itself with no alternative other than to hurtle into the deregulated free-for-all tax haven economy – a combination of Singapore and the Cayman Isles – that the Chancellor Philip Hammond had earlier threatened if Britain did not get what it wanted from the EU? How can workers and other rights ‘function sensibly’ in a UK on its way to the bottom of the league for social protection?’

Nor is this spectre at odds with the thinking of prominent members of the government, many of whom have long advocated weakening employment protections. Liam Fox, the International Trade Secretary, in 2012 described some workplace rights as “unsustainable”, while Priti Patel, the International Development Secretary, said during the EU referendum campaign that there would be benefits to slashing the ‘burden’ of EU employment legislation. Foreign Secretary Boris Johnson has also said that the Government should scrap the EU social chapter. And the already noted Government-commissioned report into employment law, the Beecroft Report, recently went so far as to propose giving employers the right to fire any employee without giving a reason.

For those in any doubt the White Paper is clear about what is really on the way:

[A]n independent review of employment practices in the modern economy is now underway. The review will consider how employment rules need to change in order to keep pace with modern business models, such as: the rapid recent growth in self-employment; the shift in business practice from hiring to contracting; the rising use of non-standard contract forms and the emergence of new business models such as on-demand platforms’

As Guy Hands chair of Terra Firma Capital Partners told Bloomberg TV ‘The country will have to get rid of its social safety net and may see a 30 percent decline in wages in real terms in the next 20 years to enable it to compete outside of Europe.’  The Brexiteers do not of course intend any of this but their fantastical belief in their policy position blinds them to its consequences, and also renders them immune to the brute fact that they are not remotely masters of their own destiny.

Can the Human Rights Act survive?

Now, and by way of conclusion, back to the particular. The Human Rights Act stands in the way of much of what is being threatened in the field of immigration control. The guaranteed right to respect for privacy and family life seriously diminishes the capacity of the country to remove settled immigrants and/or to prevent their family members joining them. Indeed even pre-BREXIT it undermines the May government’s threat to get rid of EU residents post BREXIT if Britain doesn’t get its way, a ‘main card’ in negotiations as one Cabinet minister rather airily described it.

This shift by the UK away from universal rights towards a partial, indeed provincial, reading of rights as for locals only may well surface explicitly if, as promised, the Human Rights Act is replaced by a Bill of Rights for Britain (Britons?)). This matters in Australia not only because of the close links between the two countries but also because it fits disconcertingly well with similar ‘America First’ moves that are being made by Donald Trump and his coterie of White House partisans (‘Administration’ does not seem quite the appropriate term).  Australia’s naked denial of rights to refugees is only embarrassing if the parts of the world which Australia holds in high esteem think it wrong and if the international law which says it is wrong matters. If these conditions change, then Australia’s denial of human rights becomes the new norm, not a nasty exception.

Conor Gearty is the Professor of Human Rights Law at LSE and was recently a visiting Professor at the University of New South Wales. His most recent book, On Fantasy Island. Britain, Strasbourg and Human Rights was published by Oxford University Press on 7 September 2016.

Suggested citation:  Conor Gearty  ‘Human Rights To BREXIT . . .  And Beyond‘ on AUSPUBLAW  (15 March 2017) <https://auspublaw.org/2017/03/human-rights-to-brexit-and-beyond/>