British politicians and the media have, over the last decade, continuously called for Britain’s Human Rights Act to be axed, for the country to terminate its membership of the European Convention on Human Rights and for limits on the legal impact of the EU’s Charter of Fundamental Rights.
But this doesn’t mean that the UK is hostile to human rights in and of themselves. The main complaint about these rules is not so much what they say. It’s the fact that they are (mistakenly) perceived to be European rules, imposed by European bureaucrats, overseen by European judges. But even Eurosceptics in Britain are still rather attached to 'civil liberties.' The concept of civil liberties resounds better with the British, even though they don’t differ in content from the rights in the European Convention.
Britain’s rights record is far from spotless – take the government’s recent efforts to legalize mass surveillance. But compared to many of its soon-to-be-estranged EU partners, the UK does pretty well. It has a judiciary of high integrity and quality, probably the world’s best independent public broadcaster, a national institution responsible for promoting human rights with an ‘A’ rating from the UN, low levels of corruption and a generally sober-functioning parliamentary democracy.
These competing national characteristics mean that Britain’s departure from the Union will have mixed results for the EU’s approach to fundamental rights policies.
1. The EU will lose an inspirational member country. The UK often found itself in the good books of the EU, especially when it came to fighting racial and gender discrimination. British legislation forbidding discrimination against women and minorities pre-dated EU rules by around 30 years.
The UK is considered a leader when it comes to fighting hate crime, which it will hopefully prove again when it deals with the wave of post-referendum xenophobia. It is also regarded as a pioneer for abandoning ethnic profiling – a socially harmful and ineffective policing practice, which many of its European partners, like France and the Netherlands, have still failed to tackle.
Rights-friendly policies from the UK were held up frequently as a model for other countries to follow by the EU’s Agency for Fundamental Rights, which collects good practices from across Europe to help governments learn from each other. Their researchers have often found it difficult to make sure all countries are evenly represented among these 'promising practice' examples, because the UK typically has a disproportionately high number of good policies relative to its neighbours.
2. The UK’s departure may unblock efforts by other governments to strengthen rights protection in the EU. During the last few years, the UK has been opposed to any measures that might make it look like the EU is taking greater powers – even if it's power to promote values that Britain upholds at home and abroad, like the rule of law and democracy:
- The UK has been responsible for holding up the process of the EU joining the European Convention on Human Rights. If the EU joins the Convention, this will allow individuals to go directly to the Strasbourg court if the EU (not national governments) interferes with their rights.
- The UK shot down attempts to add EU criminal law to the list of issues on which the EU’s Agency for Fundamental Rights can report. The agency’s research would help to flag when EU citizens are being treated unfairly by their own or another country’s criminal justice system.
- In 2013, Germany, the Netherlands, Finland and Denmark called for the Union to find new ways of protecting fundamental rights, the rule of law and democracy inside Europe. In 2014, the Commission responded by creating a 'framework' on the rule of law that allows it to investigate an EU country that endangers the rule of law – currently the case with Poland.
The UK tried to sabotage the Commission's new procedure. Knowing that it would come down against the Commission, the UK requested the Council's Legal Service to give its opinion on the legality of the framework. This raised eyebrows among other governments, because these requests are usually reserved for the country holding the presidency (Italy at the time). It is difficult to find any EU legal expert who agrees with analysis of the Council's Legal Service.
- National governments in the Council went on to set up their own process to help protect the rule of law – an annual 'rule of law dialogue.' The first two dialogues have been extremely modest in their ambitions, partly attributed to UK opposition towards any expansion of EU scrutiny. Recently, more EU governments, like Belgium and Italy, have begun calling for a stronger process, and Brexit has removed a significant obstacle to progress.
3. Backsliding governments in Hungary and Poland will become more vulnerable to EU pressure. The British government allied itself with Hungary’s Viktor Orbán and Poland’s Beata Szydło in exchange for their support on issues such as refugee policy and the pre-Brexit referendum negotiations. Britain’s support has undermined efforts by the Union and other governments to pressure these regimes through political isolation, for attacking their courts, public media and weakening human rights guarantees.
Without the UK, the EU may be better placed to save itself. Populists don’t only want to dismember the EU; they also want to subvert the Union’s values of democracy, fundamental rights and the rule of law. The Union could not address this latter threat while a member as influential as the UK was dragging its heels.