A no-deal Brexit would breach the UK’s own human rights laws – here’s how

The prospect of British cancer patients standing before the European court simply pleading to stay alive and to put a no-deal Brexit on hold will be the ultimate indignity for Theresa May’s Brexit strategy

Jonathan Cooper
Monday 07 January 2019 16:53 GMT
Brexit: What will happen in 2019?

Suicides will rise. The health secretary, Matt Hancock, has reportedly acknowledged that he cannot guarantee people will not die. The commissioner of the Metropolitan Police accepted that the public will be put at risk. Fridges are being purchased on an industrial scale in order to help with the stockpiling of medicines. It’s unclear how many fridges we will need to ensure an uninterrupted supply. However, this doesn’t help those who need easy access to lifesaving medicines that cannot be stored. The Home Office has warned of a breakdown in law and order. To protect life, troops might have to be brought in.

These are just some of the scenarios that will occur in the event of a no-deal Brexit.

These imminent risks to life, from security breaches to lack of medicines, mean that a no-deal Brexit will be unlawful under the Human Rights Act and the UK’s wider international human rights treaty obligations.

As a matter of human rights law, as well as the common law, the UK government cannot deliberately expose people to policies that risk a loss of life. The government is under an express obligation to protect life – but they cannot pursue a course of action that knowingly puts lives at risk. The fact that they are adopting measures that mitigate the risk for some, such as stockpiling fridges, is insufficient to prevent a violation of the right to life. Under the circumstances of a no-deal Brexit, the government can’t anticipate or plan for every eventuality.

There can be no “regrettable” and “unfortunate” victims of the government’s Brexit policy.

The fact that a no-deal Brexit will result in deaths that would not have occurred otherwise means that the UK government cannot contemplate a no-deal scenario. The government knows that there is a real and immediate risk to life by pursuing a no-deal Brexit. As a matter of the UK’s constitutional framework, no deal is simply off the table – it breaks the law.

Even if an act of parliament was passed mandating a no-deal Brexit, this would still violate the UK’s international treaty obligations and the UK would be held to account at the UN and before the European Court of Human Rights. That act of parliament could not be given a clean bill of health. It would have to be certified as being incompatible with the Human Rights Act.

Human rights laws would not prevent Brexit – but they do require a human rights compliant Brexit. Had the government put upholding human rights at the centre of their Brexit strategy and seen them as an opportunity as opposed to an obstacle, a more realistic strategy would have emerged.

Instead of being determined to get rid of the EU Charter of Fundamental Rights, the EU’s principal mechanism to protect human rights, the government should have ensured that Brexit gave effect to the charter. For example, that charter, among other things, requires a high level of human health protection. Had that obligation been at the heart of the government’s Brexit strategy, Theresa May would not find herself in this current miasma.

Lorries perform no-deal Brexit test at Kent airfield

Why the European commission did not insist that the EU charter guide the negotiating strategy is a conundrum. They too missed an opportunity to ensure the people of the UK were delivered a human rights compliant Brexit, which would have meant that the EU benefited also. But Michel Barnier comes from the same political mould as Theresa May. Neither are progressive, nor known for being socially liberal conservatives – which may explain their human rights reticence and lack of vision.

As the prospect of a no-deal Brexit becomes increasingly likely, litigation to stop it will be inevitable. Cases may even end up before the European Court of Human Rights (which is distinct from and nothing to do with the EU). The court can request interim measures under the right to life, to prevent imminent risk of irreparable harm. The UK has no choice but to observe these measures if they are implemented.

The prospect of British cancer patients standing before the European Court simply pleading to stay alive and to put a no-deal Brexit on hold will be the ultimate indignity for Theresa May’s Brexit strategy. And the idea that her Conservative government might defend their actions and try to justify leaving the EU despite its impact on the right to life will reveal precisely what Brexit has done to the UK. Worse still for the prime minister is that, in the event of no deal, investigations into the loss of life under these circumstances will be carried out in public and responsibility for deaths will be attributed.

The law has already cleared a path for the prime minister. Thanks to the tenacity of some plucky Scottish legislators, the EU’s top court has confirmed that the UK is in control of the process of leaving the EU. It is open to the UK stopping the process in its entirety – or it could be put on hold. In the event of a no-deal Brexit, the prime minister should be guided by human rights law. She shouldn’t need judges to tell her what to do. She should prioritise the right to life and put Brexit on the back burner until she can guarantee a Brexit that puts human rights first.

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