Brexit: Where Does It Leave Human Rights?
It is almost a truism to say that the nine months since the EU referendum have been tumultuous in British politics. As Theresa May poises herself to trigger the process of leaving the EU, it is important to look at Brexit’s implications for human rights, both in the UK and further afield. What has already happened since 23 June 2016? And what will happen once the ink has dried on Article 50 - to EU nationals in the UK, to children seeking asylum here, and to UK nationals in the EU’s other member states?
This is all set amidst the recent decision of the House of Lords to block the Brexit Bill from passing in order to defend the rights of EU nationals to stay in the UK after Brexit. This decision was not without controversy, bringing into question the ability of the (unelected) Lords to interfere with House of Commons’ decisions. One senior Conservative MP has said that any “messing around” with the bill would lead to questions over their existence.
Ultimately, the Brexit Bill was passed through both houses unscathed, with two key amendments, one to defend the rights of EU nationals and the other to give parliament a ‘meaningful vote’ on the final Brexit Bill, voted down by MPs by 335 votes to 287 and 331 votes to 286 respectively. This decision was later accepted by the House of Lords who felt any further attempts to amend the bill would be futile; Labour’s Shadow Leader of the House of Lords, Lady Smith, told the Guardian "If I thought there was a foot in the door or a glimmer of hope that we could change this bill, I would fight tooth and nail, but it doesn’t seem to be the case."
In response to calls for greater clarity on the likely post-Brexit situation, Prime Minister May has said that she will refuse to give a "running commentary" on the government’s plans for Brexit negotiations. While this, to some degree, understandable, it is disappointing that they cannot reassure the 2.9 million EU nationals in the UK and clarify the expected effects of Brexit on human rights; surely doing so would not significantly compromise Britain’s position for the forthcoming negotiations during the two-year Brexit process.
It is unlikely that the government would decide to deport these people; moral considerations aside, the practical difficulties involved with such a mass deportation would make it unrealistic, especially in terms of deciding who would get to stay and who would have to leave. Nevertheless, the refusal to ensure the rights of EU nationals means that the fear of being removed from their families and livelihoods remains.
This issue is just one of the ways that Brexit and human rights are inter-linked. Since the referendum, ‘Remainers’ have pointed to a spike in hate-crime statistics as evidence of legitimisation of racist views in response to the Brexit vote. The think-tank Civitas has downplayed the connection between the two, while some argue that hate crime has been on the rise since before the referendum. Others cite greater encouragement to report these acts as the reason for the rise in statistics. Regardless of whether Brexit is to blame, hate crime is a serious issue and a threat to the human rights of people living in the UK; Brexit has, if nothing else, served to shine a light on this problem. This requires a strong response and, to her credit, May has sought to address this problem head-on. Expressions of solidarity, such as the safety pin movement, are encouraging signs that Brexit does not necessitate decreased tolerance.
Immigration played a significant role in the Brexit debate – for many Brits, placing limits on immigration is more important than access to the single market. Fears that immigration was putting a strain on resources, and in some cases challenging Britain’s cultural identity, were important to the Leave Campaign’s message. The most prominent example of this is the now infamous ‘Breaking Point’ poster, unveiled by then-UKIP Leader Nigel Farage.
The Leave Campaign’s victory has arguably vindicated the government to take a harder line on immigration and refugees, reflected in the decision of the Home Office to end the ‘Dubs scheme’. This scheme was originally intended to relocate 3000 refugee children but will now come to an end once 350 children have been helped. Home Secretary Amber Rudd justified the end of the scheme by arguing that it ‘incentivises’ children to become refugees, but MPs have widely criticised the decision, voting in favour of continuing to consult local authorities about their capacity for child refugees by 254 votes to one. A petition has been set up calling for the government to keep the scheme open until 3000 children have been resettled. As we continue with the Brexit process, it is imperative that we do not lose sight of our humanitarian obligations to these people.
Finally, what will Brexit mean for human rights legislation? Many of the rights we enjoy in Britain are underpinned by EU law, and it is not yet clear exactly what will replace this. The government has declared its intention to introduce a ‘Great Repeal Bill,’ which would repeal the European Communities Act 1972 and replace EU law with domestic law. Brexit Secretary David Davis has said that "The Great Repeal Act will convert existing EU law into domestic law, wherever practical. That will provide for a calm and orderly exit and give as much certainty as possible to employers, investors, consumers and workers. And we have been clear, UK employment law already goes further than EU law in many areas - and this Government will do nothing to undermine those rights in the workplace."
While this appears to guarantee existing workers’ rights, it is not clear what will happen to the other fundamental rights that currently come under EU law, including data rights and privacy as well protection from discrimination. EU law has been described by Professor Colm O’Cinneide as "the engine that has hauled the development of UK anti-discrimination in its wake." There is the potential for Brexit to have a positive effect on human rights in the UK, given that the British government will have control on the creation of these laws. However, the lack of communication from the government about how they intend to replace EU law that protects fundamental rights is regrettable.
With the triggering of Article 50 expected this month, it is important that we do not simply get caught up in the acrimony of British politics. We must bear in mind the consequences that Brexit will have and is already having on human rights. Brexit does not need to threaten human rights, but the government must be held accountable for situations where it does.