Brexit and a British Bill of Rights: four scenarios for Human Rights

Theresa May recently raised the option of the UK staying within the EU, but leaving the European Convention on Human Rights (ECHR). Her intervention marked an important shift in the EU referendum debate and highlights the often misunderstood distinction between two separate organisations, the Council of Europe and the European Union.

The ECHR is an instrument of the Council of Europe, which has 47 member states, including the UK and Russia. The ECHR is enforced by the European Court of Human Rights in Strasbourg, and is completely separate to the EU. On the other hand, the EU has its own human rights treaty, the Charter of Fundamental Rights. The EU has 28 member states, including the UK (but not states outside of the EU like Russia). The Court of Justice of the European Union, which sits in Luxembourg, is responsible for overseeing compliance with the EU Charter as part of its remit to oversee compliance with EU law.

Of course, it is membership of the European Union, not the Council of Europe and the ECHR, which is subject to the referendum on 23 June. But the government has separately committed itself to the possible repeal of the Human Rights Act 1998 (HRA), which partially incorporates the ECHR into domestic law, with the aim of replacing it with a British Bill of Rights. This commitment had somewhat mellowed in recent months with the EU referendum coming to the fore, but May’s intervention has firmly placed the proposals back on the agenda.