Post Brexit Trade Agreements Will Decimate Human Rights
The repeal of the Human Rights Act is almost certain to be promised in next week’s Conservative manifesto, as it was in 2010 and 2015. Theresa May has long opposed the HRA, last year advocating pulling out of the European Convention on Human Rights as an alternative to Brexit.
Yet, even with the expected Conservative majority after June 9th, a repeal bill is unlikely to even make it to a vote in the Commons. There is little agreement, even within the Conservative party, on the nature of a viable replacement, attempts to identify a “British Bill of Rights” floundered and failed last year. The HRA still retains support amongst some factions of the Parliamentary party and even the right-leaning Daily Telegraph has run articles in support.
The good news for Theresa May (and the bad news for everyone else) is that her government can effectively relegate human rights to second-class laws, without ever having to win a vote in Parliament. Post-Brexit trade agreements can, in effect, subject human rights to the interests of international investors.
Mrs May has already talked of ambitions to make the UK a champion of free trade, top targets include the US, China, India, Australia, and New Zealand. Yet the rhetoric of “free trade” conceals the reality that the proposed agreements will likely promote the opposite: guaranteeing preferential treatment for a fortunate few, even to the detriment of human rights.
“Second Generation” trade agreements have transformed the rights of investors: from protections against arbitrary interference, to entitlements to preferential treatment. These entitlements, in effect, give investors’ interests priority over human rights.
Investors can enforce their entitlements in private tribunals, to which ordinary citizens are denied access. While domestic courts will consider the public policy benefits of a measure (the greatest good for the greatest number), the investment tribunals will generally only consider if an investor’s entitlement has been violated. Although they can take human rights into account, they almost never do so. An investor going to a tribunal thus has a much better chance of enforcing their entitlement against a government, than an individual has of enforcing their human rights in a domestic court.
While tribunals can’t technically overrule governments, their rulings often have the same effect. They can impose damages in sums so large that measures designed to protect human rights become financially unviable. Sometimes the mere threat of damages is enough to compel a settlement, in which states often agree to abandon policies made in the public interest, in return for lower damages. When a Canadian measure to improve safety when transporting explosive chemicals was held to impact on an investor’s interest, Canada abandoned the policy in the face of scientific advice.
Investors can and have used their entitlements to overturn measures intended to protect human rights. The Apartheid government in South Africa systematically stripped black South Africans of their land, property, and ownership of companies. The African National Congress government attempted to remedy this gross abuse of human rights, giving black South Africans a pathway to ownership of shares in companies operating in South Africa. It was forced to abandon its attempts at redress after it was indicated that they would impose on the interests of international investors. Put another way, investors entitlements maintained the impacts of apartheid.
Post-Brexit, the HRA itself could face a threat from Second Generation agreements. If the decision of a domestic court impinges on the interests of investors, they can, in theory, have it reviewed by an international tribunal. Comments made by judges in lectures, books, or at public events can justify tribunals in reviewing their decisions. The tribunal can’t overrule the court directly, but the size of potential damages may force governments to ignore judgments or legislate to overturn them. Judgements that uphold the HRA may, therefore, be threatened by post-Brexit trade agreements.
Human rights are the fundamental arbiter of the relationship between the individual and the state. Post-Brexit trade agreements have the potential to relegate them to a second class of law, only effective as long as they don’t compromise the interests of international investors. It would be tragically ironic if, in voting for Brexit, we “took back control” only to immediately give it away to international investors.