Date lodged: 15 August 2017
To ask the Scottish Government what the impact will be on Scotland's relationship with the European Court of Human Rights of the UK leaving the EU.
Answered by: Angela Constance 6 September 2017
The European Court of Human Rights is an institution of the Council of Europe, rather than the European Union (EU). The Court is established by Section II of the European Convention on Human Rights (ECHR).
UK withdrawal from the EU will not, of itself, directly affect Scotland’s relationship with the Court or alter the UK’s status as a state party to the ECHR.
The UK’s exit from the EU will, however, remove human rights protections in fields covered by EU law, in particular protections related to the general principles of EU law. This will adversely affect domestic human rights protection in the UK. The UK Government’s European Union (Withdrawal) Bill expressly removes rights of action based on those general principles (paragraph 3 of schedule 1) and will not convert the EU Charter of Fundamental Rights into domestic law (clause 5(4)).
The Conservative Party’s 2017 manifesto commits UK ministers to remaining a signatory to the ECHR only for the duration of the current Westminster parliament. The Human Rights Act 1998 will not be repealed or replaced “while the process of Brexit is underway”. But the manifesto undertakes to “consider our human rights legal framework when the process of leaving the EU concludes”.
It is therefore possible that a future Conservative UK Government may seek to withdraw the UK from the jurisdiction of the Court and from the ECHR. If that were to happen it is unlikely that the UK could remain a member of the Council of Europe. Such developments would significantly compound the human rights impact of Brexit.