2018 Human Rights Lecture: The Impact of Brexit on Rights

Back in May, in the midst of the referendum campaign on the 36th Amendment to the Constitution, I attended the Law Society of Ireland where I delivered the 2018 Annual Human Rights Lecture. I had been asked to speak to the topic of ‘The Impact of Brexit on Rights’ and delivered a lecture that looked at this from three angles: protection of rights in the UK generally after exit day, the protection of rights in Northern Ireland in particular, and the future of a ‘Europe of rights’ in a Brexit context. The full text is available on the Law Society website here, but here’s the conclusion:

Brexit [is] an opportunity if not an imperative to re-make the argument for a Europe of rights and to ensure that the European Union operates as such. It can and should inspire us to make once again, and again, the moral argument for European solidarity, and for a post-nationalist solidarity of love and care across our continent. To do that we need to show that a Europe of rights can work, even as, as Ban Ki-moon has said, the world has “reached a level of human suffering without parallel since the founding of the United Nations”.[1]In this, our European Union, many millions of people live in intense suffering: they cannot school their children in their language and cultural traditions, they cannot express themselves freely without fear of persecution, they cannot walk through life without being subjected to sexual and gender-based violence, they cannot access appropriate healthcare including reproductive healthcare, they have no or unsafe homes, they have diminishing security in later life, they experience daily disregard for their dignity especially in sickness and/or old age, and they see around them at all times the deep and deeply rooted inequalities that set the conditions in which European human rights abuses occur.

Remaking the argument for a Europe of rights, thus, requires us both to articulate clearly the moral case for rights, even when their protection may require us to give up some sovereignty or when a rights violation in question seems far from our own experiences. It requires us to see a violation in Ljubljana and Limavady as equally injurious to our humanity; to care as much for our fellow European in Ghent as in Galway; to see our land as much as that of our European co-denizens as of our scattered, intergenerational diaspora.  

It requires us also to press with urgency for a Europe of rights that goes beyond practical and technical solutions to legal challenges and recommits to the true and rich solidarity that underpins the vision of Europe. That may in turn compel us to move on from a Wilsonian idealism that believes democracy and capitalism are the keys to freedom, peace and prosperity. It may require us to question again the ordoliberalism of the Union and its fiscal and economic structures and policies. It may require us to look with more care and more love on our compatriots and enact our esteem for them with more open borders, more supportive socio-economic models, and more welcoming hearts.  

This is not to say that some of the challenges thrown up by Brexit are not amenable to technical and practical solutions; of course they are. The nature and status of retained legislation in the UK is a matter, partly, of technical legal design. The operation of an all-island system of rights and a near-invisible border between the two jurisdictions can be resolved with a set of technical solutions. But even these technical and practical solutions will not work without an underpinning commitment to rights between all of the relevant stakeholders: the member states, the European Union, and the peoples of Europe and of these islands.

Technocracy ultimately fails because it conceits to divorce the technical from the political; when it comes to rights these two cannot be separated. If the reaction to Brexit is merely to seek technical and practical solutions without attending to the root causes and their potential persistence within the European Union then the setting for further ‘_exits’ will remain undisturbed, and the price may well be far greater than any us care to consider.

In Whatever you Say, Say Nothing, from which I have already quoted, Seamus Heaney closes with words that seem apt for the situation we find ourselves in now:

Competence with pain,

Coherent miseries, a bite and sup,

We hug our little destiny again.

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The new sovereigntism: what it means for human rights law in the UK

Cross-posted from LSE Brexit Blog

For many people, Brexit is about taking back ‘control’; about determining for ‘ourselves’ what the law is, how it applies, how we spend our money, and how we develop our policies. The fact that many people both before the referendum and now struggle to identify with accuracy an area of law or policy in which the EU has ‘taken’ control (and not had competence ceded or shared through a Treaty change ratified by the UK) is irrelevant; what matters is the perception of a lack of national autonomy, and an associated corrosion of domestic democratic control.

Deep within at least parts of the arguments that circulate around Brexit is a form of new sovereigntism that is deeply worrying to the rule of law. The UK is hardly alone in this phenomenon; as far back as 2000 Peter Spiro wrote about the emergence of new sovereigntism in the United States; about a group of scholars and intellectuals who were not opposed to international law per se, but who thought that the US should be able to engage with it as and when it wanted to. In other words, these scholars promoted an a la carte approach to international law, underpinned by a “brand of anti-internationalism [that] runs deep in the American political tradition”. Continue reading The new sovereigntism: what it means for human rights law in the UK

The JCHR Enquiry on Derogation from the ECHR: My Written Evidence

The Joint Committee on Human Rights has now published all of the written evidence it received about the proposed derogations by the UK from the ECHR in situations of conflict abroad. My submission is available here, and the executive summary is as follows: Continue reading The JCHR Enquiry on Derogation from the ECHR: My Written Evidence

Can infringement proceedings ‘solve’ the ECtHR’s non-execution problem?

The final version of new article, written with Kanstantsin Dzehtsiarou, is now published in the International and Comparative Law Quarterly. The article, entitled (rather pessimistically) “Mission Impossible? Addressing Non-Execution through Infringement Proceedings in the European Court of Human Rights”, picks up on a recent proposal that Article 46(4) of the ECHR would be used to address non-execution. This allows the Committee of Ministers to refer a case back to the Court in the case of non-execution by the contracting state. In short, we argue that such an approach is misguided on three grounds: practicality, futility, and backlash. Fundamentally, we say, the proposed solution does not ‘fit’ the problem of non-execution properly understood. Continue reading Can infringement proceedings ‘solve’ the ECtHR’s non-execution problem?