Running Head: HUMAN RIGHTS IN UK UNDER ECHR 1

HUMAN RIGHTS IN UK UNDER ECHR AFTER BREXIT

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Introduction

The European Union's Charter of Fundamental Human Rights (the "Charter") is the foundational

EU legislation that impacts UK human rights but is not incorporated in national legislation

(Nemtoi, 2020). The European Convention on Human Rights (ECHR), which, like the Charter, is

an European agreement intended to defend civil rights, is sometimes mistaken with the Charter.

The ECHR, on the other hand, was created in reference to representatives of the Council of

Europe, whilst the Charter was created in respect to EU member states. The UK codified the

ECHR, producing the Human Rights Act 1998 (HRA), the principal framework for the

preservation of personal liberties in the UK, where the Charter had never been integrated into

national legislation (Dzehtsiarou et al., 2021). Despite the fact that the UK's EU status has no

bearing on its participation in, and hence duties under, the ECHR, the UK retains sovereignty

over its national laws, posing a serious threat to the HRA, the UK's foremost basic human rights

statute (Moxham & Garner, 2020). Irrespective of the present government's promises that the

adjustment is in the benefit of the people, amending or repealing the HRA would have a

significant impact on human rights. Moreover, human rights will almost certainly play a key part

in any eventual military cooperation deal. The idea of 'mutual recognition' of judgments taken by

Member Countries underpins EU judicial system and intelligence sharing, which is founded on

trust in the legitimacy of those outcomes and the integrity of persons. The ECHR norms are

primarily responsible for this confidence.

Fundamental Rights that required Protection

Individual or collective rights to inherent dignity and personal liberties that necessitate protection

under the law from governmental intervention, when those rights are derived from the reality of
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being human, are known as sentient liberties. Ordinarily international norms and contractual law

are two components of international law that give rise to such privileges. The former stems from

the conventions that nations have embraced. They are based on the belief that, through time, they

have become acknowledged as core of international law, despite never having been officially put

to writing.

For example, one of the first accords signed after the Second World War begins with a

reiteration:

We, the peoples of the United Nations, have made the following decision:

 To protect future generations from the horror of conflict, which has wreaked havoc on

humanity repeatedly in our lifetime? (Lindkvist, 2017)

 To reassert trust in universal human rights, in the value and dignity of the human

individual, in the equality of male and female, and in the privileges of small and great

nations (Lindkvist, 2017).

European Convention on Human Rights

While the original draft of the Convention allowed for grievances to be managed bringing

against states by another state or by independent candidates, the privilege of individual citizens

to carry grievances was an alternative for independent state, so unless the country decided in, the

person would be barred from trying to bring a claim against a certain state (Stoyanova, 2018).

The Convention begins with a series of preamble outlining the objectives to be achieved, as well

as the states' intents to accomplish these objectives in light of the European Convention on

Human Rights' different rights and liberties (Stoyanova, 2018). The sermons are preceded by a

series of 'articles,' which are short paragraphs.

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The ECHR has a long list of accomplishments. It strives to advocate democratic and human

rights throughout Europe, has produced human rights legislation, and has made substantial

achievements to Europe's security and cooperation (Stoyanova, 2018). Individual petition rights

have been restored as a result of recent changes, providing individuals with safety from state

authority.

UK law and Human rights

The lack of legislative mechanisms on human rights has hampered the evolution of human rights

legislation in England and Wales for centuries. Judges endeavored to construct the legal

principles where there was no regulation that addressed a specific issue. For many years, judges

have defended their autonomy and ability to block laws. Cases involving personal freedom have

been brought before the authorities in recent years, notably with the introduction of the Human

Rights Act of 1998 (Lock, 2017). The traditional defendant in such situations is the Home

Secretary, as the appropriate ministry of the Crown. As a consequence of the necessity that the

European Convention on Human Rights be followed, a series of court rulings have gone against

the authorities, to the point that courts have disagreed with the current Home Minister (Lock,

2017). Case law demonstrates that rulings against the Crown on such concerns are not limited to

the post-Human Rights Act 1998 period, and that the Interior Secretary is not invariably the

plaintiff.

Expected Changes after Brexit

The EU (Withdrawal) Act 2018 declared that the Charter failed to apply to the UK upon

withdrawal from the EU because it was not relevant to national law pre or post exit day

(Schomburg et al., 2021). Human rights are under jeopardy in a variety of ways. To begin with,

despite the Charter's primary goal of reaffirming existing rights while limiting the degree to
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which internal rights would be impacted, it has resulted in the introduction of new rights. Beyond

withdrawal, they won't need to be implemented at a national level. Second, the Charter allows

citizens to take legal action over domestic law that is inconsistent with a basic human freedom,

an option that disappears if the Charter's national scope is removed.

Furthermore, despite the fact that the UK's EU membership has no bearing on its participation in,

and hence duties under, the ECHR, the UK retains sovereignty over its domestic legislation,

posing a serious threat to the HRA, the UK's most basic freedoms provisions (Moxham &

Garner, 2020). The Governing Party has long expressed its desire to change the HRA, but Labor,

the Liberal Democrats, and the Scottish National Party have pledged to keep it in place.

Irrespective of the present government's assertions that the reform is in the national interest,

amending or repealing the HRA would have a domestic impact on fundamental rights.

Repeal and replacement of the HRA has long been a Conservative Party priority. During the

Governing Coalition of 2010-2015, the Liberal Democrats hindered this, and the outcome of the

2016 EU vote disrupted it (Dawson, 2019). In their 2017 platform, the Conservatives declared

that they would not amend or abolish the HRA whereas the Brexit debate was ongoing, but that

once the UK had left the EU, they would evaluate "our human rights legal framework." "Update

the Human Rights Act and administrative law to ensure that there is a proper balance between

individual rights, our vital national security, and effective government," the 2019 manifesto

recommended (Dawson, 2019).

Through its external activities, the EU has pledged to respect and promote human rights and

democracy. Human rights are frequently inserted into trade treaties with the EU through a

"essential elements" human rights provision that allows one party to take necessary action in the

event of major violations by the other. The amended Political Memorandum of October 2019
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laying out the foundation for the EU's potential partnership with the United Kingdom lays out

core values and rights as a foundation for cooperation (Dawson, 2019). The future partnership

should include the UK's continuous promise to respect the framework of the ECHR, according to

the document.

Human rights are expected to have a prominent feature in any future security cooperation deal.

The idea of ‘mutual recognition' of judgments taken by Member States underpins EU judicial

system and bilateral cooperation, which is founded on trust in the legitimacy of those results and

the conduct of persons (Dawson, 2019). The ECHR norms are primarily responsible for this

confidence. If future security cooperation is to even come close to existing levels, the UK will

very certainly have to commit to maintaining these standards. The Political Declaration envisions

a wide, comprehensive, and balanced security cooperation based on sustained respect to the

European Convention on Human Rights.

The European Union, which reaffirms rights derived from the ECHR in particular. The Parties

also agreed that the size and nature of potential provisions should strike an adequate balance with

both rights and responsibilities, according to the PD (Winter, 2021). It must also be supported by

long-standing dedication to particular basic rights, such as continuing commitment to and

implementation of the ECHR. As a result, this approach paved the way for the EU-UK Trade

Agreement and solidified the UK's adherence to the European Convention on Human Rights

(Winter, 2021).

The Sides shall maintain to support the common principles and values of freedom, the law and

order, and protection of individual rights, which underlie their internal and overseas policies, as

stated in the Brexit trading partnership. The Parties reiterate their commitment to the Universal

Declaration of Human Rights and the international human rights treaties to which they are
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signatories in this regard. The ECHR is not directly mentioned in the agreement, but it is one of

the multilateral agreements to which they are party, as eagle-eyed readers will see.

None of this precludes the UK from seeking to leave the ECHR or, at the very least, reduce its

influence in the future years. Without totally leaving, the UK might still implement legislation to

restrict the ECHR's application, perhaps in respect to EU case law in the UK (McClean, 2020).

What would happen if the UK failed to keep its promises? The trade agreement does not make

this explicit. For example, Russia approved a bill in 2015 severely restricting the domestic

application of ECHR judgments, and the EU's recent findings on the legal system and liberties

protection suggest that the Convention system can accommodate widespread non-compliance

with human rights criteria (Solomina, 2021).

Conclusion

If the goal of ECHR regulation is to guarantee that the UK abides by outside human rights

guarantees, it might be argued that the EU should also be required to offer these promises to the

UK through ECHR membership. Irrespective of the EU's admission, all 27 EU Member States

are individually parties to the ECHR, which implies that the Member State police and judicial

organizations with which the UK wants coordination through an EU treaty are all obliged by the

ECHR. When the major focus of the entire Brexit debate was about restoring independence from

European institutions, advocates of Brexit may claim that the deal binds the UK into prolonged

ECHR membership. Public opinion on the ECHR is mixed; while assistance for human rights in

general is often powerful, individual circumstances from the European Court of Human Rights

can often foster antagonism toward the organization, which, when charted onto established

ideological divisions on Brexit, could result to the perception that the deal does not move much

further. The United Kingdom is devoted to upholding its present responsibilities to global human
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rights agreements and treaties, notably the ECHR. However, the trade treaty is vague on this

pledge, and there is no certainty that it will be maintained in the future.

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References

Dawson, J. (2019). How might Brexit affect human rights in the UK?

https://commonslibrary.parliament.uk/how-might-brexit-affect-human-rights-in-the-uk/

Dzehtsiarou, K., Falcetta, S., Giannoulopoulos, D., Johnson, P., Clements, L., Cranmer, F.,

Dickson, B., Gearty, C. A., Greene, A., & Hodson, L. (2021). Human Rights in Action.

Assessing the Positive Impact of the Human Rights Act 1998 in the UK.

Lindkvist, L. (2017). Religious Freedom and the Universal Declaration of Human Rights.

Cambridge University Press.

Lock, T. (2017). Human rights law in the UK after Brexit. Edinburgh School of Law Research

Paper, 2017/17.

McClean, E. (2020). The ECHR, the HRA and Protecting Human Rights in the UK: A View

from International Law. U. of Westminster School of Law Research Paper Forthcoming.

Moxham, L., & Garner, O. (2020). Long read. Will the UK uphold its commitment to human

rights? LSE Brexit.

Nemtoi, G. (2020). ” New” and” Existing” Rights in the Charter of Fundamental Rights of the

European Union. LOGOS, UNIVERSALITY, MENTALITY, EDUCATION, NOVELTY.

Section: Law, 8(1), 16–23.

Schomburg, W., Oehmichen, A., & Kayß, K. (2021). Human rights and the rule of law in judicial

cooperation in criminal matters under the EU–UK Trade and Cooperation Agreement.

New Journal of European Criminal Law, 12(2), 246–256.

Solomina, D. (2021). Evolution of the protection of the freedom of assembly and association

under the ECHR and the ICCPR in the Russian Federation.

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Stoyanova, V. (2018). Causation between state omission and harm within the framework of

positive obligations under the European convention on human rights. Human Rights Law

Review, 18(2), 309–346.

Winter, E. (2021). The EU-UK Trade Agreement: Initial Impressions of the Dispute Settlement

Provisions.