What impact will Brexit have on the ECHR?

Unless you have been hiding in the shadows, you will be aware that on the 24th June 2016, the result of Brexit was announced. Britain voted to leave the European Union. It is estimated that if Britain triggers Article 50 of the Treaty on European Union this month, it could be free of the European Union by 2019, but what would that mean for human rights and the European Convention on Human Rights (ECHR)?

The ECHR was drafted by the Council of Europe and currently has 47 Member States, the UK being one such State. The ECHR sets out fundamental human rights such as freedom of expression and the prohibition of torture, and ensures these rights are protected by its Member States. The ECHR is enforced by the European Court of Human Rights (ECtHR) and is a separate entity from the EU. Therefore by leaving the EU, Britain isn’t free of the ECHR.

If Britain wish to opt out of the ECHR, the Human Rights Act 1998 (which partially integrates the ECHR into domestic law) would have to be repealed. There is some domestic law in place protecting human rights in Britain, such as the Bill of Rights 1698 but this afford citizens a weaker protection than the ECHR.

If Britain left both the EU and the ECHR, there arguably could be a void in human rights legislation. They would be erasing long standing precedent on human rights in their jurisdiction. A new British Bill of Rights has been suggested to remedy this problem. However, an unimaginable amount of consideration would have to go in to such legislation, if it were to effectively replace a major framework such as the ECHR. Critics have expressed fears that a Bill of Rights would weaken the rights afforded to citizens.

It has been suggested that following her 2020 election campaign, Prime Minister Theresa May will set the ball rolling for Britain to leave the ECHR. The rights currently conferred under the ECHR would be instead protected under domestic British law and would be enforced by the Supreme Court, rather that the ECtHR in Strasbourg.

jamie-street-136939

Westminster & the Houses of Parliament                                               Image-Unsplash

May stated:

 “…..my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its court.”

The ECtHR has been condemned by critics who deem it to hinder nation sovereignty and who are frustrated with it for preventing Member States from deporting terrorists and people who pose a threat to them. They are of the belief that it has too much power in governing domestic policy. The Prime Minister was at odds with the ECtHR when she was acting as Home Secretary when it prevented her deporting the radical cleric, Abu Qatada.

Supporters of the ECtHR recognised the vast work the Court have done in recognising the rights of people and especially of marginalized groups within society. Such groups believe that withdrawing from the ECHR would have a significant impact on Britain’s international footing.

It is worth considering that the ECHR was also a major element of the Good Friday agreement in Northern Ireland. Withdrawing from the Convention would undoubtedly cause controversy.

Alternatively, once Britain has cut ties with the EU and if it chooses not to repeal the Human Rights Act,  they will continue to be governed by the ECHR which is arguably a safer and more robust option.

What do you think is the best option for Human Rights in Britain? IS the best option to withdraw from the ECHR or is remaining in it a safer option? Let me know in the comments.

Featured Image: Pixabay – https://pixabay.com/en/brexit-exit-united-kingdom-england-1481028/

Trump’s ‘Travel Ban’ & its infringement on Human Rights

It is a reasonable assumption that you are all relatively familiar with the Executive Order which was invoked by Donald Trump on 27th January. This was heavily reported by the media as being a ‘Travel Ban’ but was also branded an “Anti-Muslim Ban”.

In essence, the Order prevented immigration & temporarily barred people from entering the U.S from the following countries:

  • Iran
  • Iraq
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

These 7 countries are predominantly Muslim and this caused worldwide outrage.

capture

Of course, the ban was then blocked and the 9th Circuit Court of Appeal in San Francisco have since refused to reinstate it. It is important to note however that this doesn’t necessarily render the ban unconstitutional and undoubtedly there will be more to follow on this point as the legality of the ban is further examined. Those opposed to the ban felt it was repugnant to the 1st amendment of the U.S Constitution which was 1 of 10 amendments to the Bill of Rights on 15th December 1791.

The Immigration & Nationality Act was passed in the U.S in 1965. This set out that one can’t be “discriminated against in the issuance of an immigrant visa because of the persons race, sex, nationality, place of birth or place of residence“. Given that the 7 aforementioned countries were all predominantly Muslim, this resulted in the ban being dubbed an “Anti-Muslim” ban by critics and that it was a violation of the 1965 Act.

Zeid Ra’ad al Hussein, the United Nations rights chief said of the ban:

“Discrimination on nationality alone is forbidden under human rights law”

 

Under the United Nations Refugee Convention, the U.S is obliged to provide safety and protection to those facing persecution. In denying such people admission, the U.S was presumably flouting this duty.

Ireland & Preclerance

kayle-kaupanger-208342 (1).jpg

Stock Image – Unsplash

Had the ban remained in place, there was also a possible human rights issue relating to preclearance in Irish airports.

The Aviation (preclearance) Act 2009 gives effect to the Preclearance agreement between the U.S and Ireland in 2008. This act means that preclearance in carried out in both Dublin & Shannon airports, which of course are Irish airports, and also the only European airports to have preclearance facilities for the U.S.

Preclearance areas are governed by Irish law however, and must be conducted in accordance with the Constitution and the European Convention on Human Rights (ECHR).

Fiona de Londras, in a blog post, raised an issue in relation to the effect Trump’s Executive Order would have had on discrimination on Irish soil. It is worth browsing humanrights.ie generally on the topic. De Londras noted that if someone was turned away at preclearance, they must be treated in accordance with Irish law and therefore any Irish officials involved must act in a way that is not in contravention with either the Irish Constitution or the ECHR. The State is required to ensure Constitutional rights and right under the ECHR are protected in such preclearance areas. Had the travel ban remained in place, we my have seen breaches of such rights become very topical.

Given that deportation is still a hot topic in the U.S, what do you think will happen next? Will a similar but more ‘thought-out’ ban be put in place?

Featured Image:  Stock Image – Unsplash

 

 

 

 

What are Human Rights?

It is important to have a basic understanding of Human Rights before engaging with this blog. Many of you will be very familiar with the concept but for those who are less familiar, hopefully this post will give you clarity.

Human Rights are difficult to define, but it is the belief of many that Human Rights derive from the natural law i.e, they are inherent in a person by virtue of the human personality.

If we analyse both words separately: ‘human’ and ‘rights’, we can deduce that human rights denote rights which are fundamental to every person. All rights are seen as being of equal importance and they must be protected by our legal system.

The United Nations Office of the High Commissioner for Human Rights definition is commonly cited. It set out that Human rights were:

‘basic rights and freedoms that all people are entitled to regardless of nationality, sex, national or ethnic origin, race, religion, language, or other status’.

european-court-of-justice-1279720_960_720

European Court of Human Rights, Strasbourg                                                            Image – Pixabay

Human Rights are now protected by our national and international legal systems. In Ireland, they are protected in the 1937 Constitution of Ireland. They are also heavily protected by the European Convention on Human Rights (ECHR). The ECHR is fundamental to the case law we will be addressing on this blog. However, there remains a noticeable lack of a definition of the concept of Human Rights.

In my next post I will be addressing the Human Rights issues that surrounded President Trumps ‘travel ban’ in the U.S.A. Make sure to follow the blog so you don’t miss a thing!