My dissertation discussed the precedent set by Brexit on any future attempt by the Conservative government to withdraw the United Kingdom from the European Convention on Human Rights (ECHR). Although the UK government’s position on whether to withdraw from the ECHR, and by implication, repeal the Human Rights Act 1998 (HRA), has been inconsistent, most recently the Prime Minster suggested a ‘pause’ on the issue until the Brexit process is over. If a future government wishes to pursue such withdrawal, it will most likely face Parliamentary opposition. This may lead the government to consider taking unilateral action to withdraw the UK from the ECHR using Royal prerogative powers. The lawfulness of this can be assessed in the light of the recent Supreme Court decision in R (on the application of Miller) v Secretary of State for Exiting the European Union. This case concerned the legality of the government’s attempt to use Royal prerogative powers to withdraw the UK from the EU.
My dissertation argued that, following the Miller judgment, there is no prerogative power for the government to withdraw the UK from ECHR, and that any such withdrawal must be authorised by an Act of Parliament. This is because, for one, the ECHR is imbedded in the constitutions of England and Wales, as well as that of the devolved nations of Scotland and Northern Ireland. For the other, I argued that the rights under the HRA are dependent (in respect of their legal effect) upon the UK’s continued adherence to the ECHR. All of this means that not only would withdrawal from the ECHR have a widespread constitutional impact on the UK legal system, but it would also frustrate the HRA and thereby diminish individual domestic rights. In Miller, the Supreme Court held that it is precisely these two implications – widespread constitutional impact and diminishment of individual domestic rights – that have rendered the bypassing of Parliament, for the purposes of triggering Article 50, unlawful.
My dissertation further elaborated on the latter argument by pinpointing the specific individual rights that would be diminished if the UK withdrew from the ECHR. I argued that the common law never has, and most likely never will, replicate the rights contained in the ECHR. Moreover, statutory law is unlikely to fill in the gaps due to political considerations. For example, the right not to be tortured as well as the right to a fair trial – as contained in Article 3 and Article 6 of the ECHR and as elaborated upon by the European Court of Human Rights – are not contained in either common law or statutory law. By no coincidence, both of these rights have been met with a high degree of political controversy, especially when invoked by 'foreign criminals' as the reason why they cannot be deported.
Taking into consideration the further fact that, by virtue of the concept of Parliamentary Sovereignty, British enforcement mechanisms of human rights are also much weaker when compared with the ECHR rights (which are backed by the force of international law), my dissertation concluded that withdrawal from the ECHR would have clear negative impacts on UK human rights standards. This means that Parliament is most likely to maintain strong opposition to such withdrawal. Following Miller, the UK government will need Parliamentary approval to withdraw from the ECHR, making such withdrawal extremely difficult, if not impossible.