Brexit: What it Does and Doesn’t Mean for Human Rights

by Heather McRobie

11 March 2016

The right-wing agenda of the Brexit campaign should ring alarm bells for anyone who cares about social justice, equality and human dignity. And Britain’s exit from the EU would likely set back workers’ rights, among others. But let’s also remember – human rights abuses are committed by the EU too.

What are human rights? A mechanism for social justice and equality.

For those concerned about human rights – the provisions for civil, political, economic, social and cultural rights in international law that are still the best mechanism we often have to protect human dignity, social justice and solidarity – the appropriate response to the Brexit debate might well be Mercutio’s old ‘a plague on both your houses’. The argument goes something like this: can anyone who cares about human dignity support, in good conscience, Boris Johnson’s sneering racism on the one hand, or an EU of the Fortress Europe that lets thousands die in its seas and at its borders, and suffer under the structural violence of austerity, on the other? How we think about human rights might help us to answer this question.

The Leave campaign has drawn upon the xenophobic rhetoric that the Murdoch/right-wing press has stirred for decades, which erroneously depicts ‘human rights’ – embodied in the right-wing press’s bête noire of the Human Rights Act – as sinister mechanisms created to ensure terrorists can have spa days in their prisons and convicted paedophiles are more ‘protected’ than their victims. In fact, far from the depiction of human rights in the xenophobic parts of the British media as just civil and political rights (which, in Daily Mail logic, are deployed only to ‘protect’ the bogeymen of terrorists, paedophiles and Brussels bureaucrats), ‘human rights’ in fact contain a range of rights from the individually-oriented to the collective.

Remembering the full spectrum of what is meant by ‘human rights’, those seeking to respond to the Brexit debate from a progressive, radical or left-wing perspective should be concerned about their fate in the possible post-referendum futures.

And as ever, we need to resist attempts by the political elites to create false binaries: fear of Brexit, particularly framed as it currently is, in a wider context of toxic right-wing xenophobia, does not entail an endorsement of the EU in its current form and all that has been done in its name.

Which human rights instruments would be affected by Brexit?

This is the subject of some debate and much media noise, particularly over the 1998 Human Rights Act, which the Conservatives pledged to scrap in the last general election. As an Act of Parliament, the Human Rights Act stitched the European Convention on Human Rights (ECHR) into British law: like any other piece of legislation it can be removed at any time by a new Act of Parliament. The European Convention on Human Rights – like the European Court of Human Rights, to which it is attached – emerged out of the Council of Europe system, which is separate from the European Union. The removal of the Human Rights Act, whilst likely to come in tandem with Brexit, is neither dependent on Brexit nor Brexit upon it.

The European Court of Justice (ECJ) is, on the other hand, an EU body that draws upon the case law of the European Court of Human Rights, and its Convention, so Brexit would entail Britain formally cutting the link between the ECJ and the UK (the legal relationship between the ECJ and the ECHR, and how this affects the UK as a non-standard member of the EU, has been complicated further by the Treaty of Lisbon).

It’s worth noting it doesn’t matter too much in reality, given the wider rhetoric around ‘scrapping the Human Rights Act’, that the ECHR and European Court of Human Rights are Council of Europe rather than EU institutions. But while the Human Rights Act has become a bogeyman of the Daily Mail and other right-wing voices, it’s also worth bearing in mind that Article 15 of the Act already gives the government the ability to derogate from Convention rights, and a number of human rights theorists actually criticise the Human Rights Act (and the European Convention) itself for being far less comprehensive than other human rights conventions, covenants and commissions in the international and regional human rights legal spheres.

Workers’ rights.

The European Union’s treaty outlines the institution’s competences in the field of labour law, and Articles 45-48 recognise the rights of workers (although, significantly, there are no provisions against unfair dismissal) and their rights to work freely across the EU without discrimination based on nationality. Leaving the EU would not only impact of the livelihoods of non-UK EU workers currently working in the EU, but would also take away British citizens’ rights to work unimpeded in other EU countries.

There is also important case law establishing workers’ rights that has emerged from the EU system, including the ECJ (which last year famously ruled that the time taken travelling to and from a job counts as working time). And the fact Brexit would remove some of the protections that employees and citizens can currently turn to in order to protect their rights is particularly alarming in the current context, where we have a British government with a track record of curtailing workers’ rights and basic social welfare provisions.

In fact, the last government already made several attempts to get the UK to ‘opt out’ of EU work laws, as the UK has also ‘opted out’ of European legal recognition of ‘solidarity’ and collective bargaining.

The EU is a violator of human rights.

So a Brexit pushed through by a xenophobic government with a track record of curtailing workers’ rights, protesters’ rights, and human rights as a whole is likely to leave British people in a more precarious position in terms of the mechanisms they can draw upon to defend themselves.

We need to be careful, though, that in advancing this argument we don’t fall into a blind defence of the EU itself. The broader argument put forward by some pro-EU liberals that the EU ‘stands for human rights’ because it was formed with the aim of bringing peace and co-operation to Europe is unconvincing: to those on its borders, in its prisons, and on the blunt end of neoliberal economic policies, the EU is hardly a protector.

Like many supranational institutions, the EU occupies a double role in the human rights sphere, of both reinforcing the norms of human rights (and taking to task member states who fail to uphold such standards) and simultaneously participating in human rights violations or – at least – creating conditions where human rights in their full sense cannot flourish. Yes, various institutions within the EU spend much of their time telling member states to ‘not violate human rights’, and – in tandem with the work of the Council of Europe and the OSCE –  there have been some successes on this front, such as provisions protecting the human rights of Roma in the countries that joined the EU in 2004 (although even this can’t be declared a total success while Hungary can get away with openly anti-Roma sentiment literally coming from its government). Yet as an actor the EU commits human rights violations itself: just this week the UNHCR warned the EU that its new ‘one-in, one-out’ deal with Turkey, to ‘return’ refugees, risks violating international human rights law.

In short, Brexit – particularly framed in the way it is being put forward, in a wider climate of xenophobic hostility and disdain for the Human Rights Act – will damage human rights provisions, not least some important workers’ rights, to the detriment of anyone living in Britain. But staying in the EU now also can’t be a vote for the status quo – it should become a moment to combat the structural violence perpetuated by the EU itself, not least upon those at its borders.

Photo: barnyz/Flickr

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