Are the rights and freedoms of individuals who lack capacity safe after the referendum?

We consider the potential impact of Brexit on European Convention rights in the UK particularly in relation to the Deprivation of Liberty Safeguards Framework.

We now have the results of yesterday's referendum with a marginal but nevertheless decisive victory for the leave campaign. With 51.9% of voters choosing to leave the European Union, the exit provisions of Article 50 of the Lisbon Treaty will now be triggered. Whilst strictly the referendum is not legally binding the activation of the exit clause in the Treaty was confirmed by outgoing Prime Minister David Cameron early on 24 June 2016.

What this means for the Human Rights Act and the work of the Court of Protection will be a question for many. In our view, don't expect any dramatic changes any time soon.

Firstly, and importantly, it is worth a reminder of the key institutions / frameworks in Europe –

  • The European Convention on Human Rights (ECHR) - the rights under the Convention are incorporated into UK law by the Human Rights Act 1998. This is where the key Human Rights protections and freedoms derive from, for example – Article 2 (the Right to Life), Article 5 (the Right to Liberty and Security, including a speedy review of the lawfulness of a deprivation of liberty) and Article 8 (the right to respect for private and family life).
  • the European Court of Human Rights - the Court which rules on individual or State applications alleging violations of those civil rights set out in the ECHR. Crucially – this Court is not an EU institution. Its jurisdiction does not depend on a country being an EU Member State. Instead, the jurisdiction depends on being a signatory to ECHR which the UK remains to be, notwithstanding the Brexit. Its membership goes well beyond the European Union.
  • The European Court of Justice – ensures that EU law is interpreted and applied the same in every EU country; ensuring countries and EU institutions abide by EU law. This would be affected by the Brexit decision but will not impact directly on the above Convention Rights.

What does this mean? Well essentially, Brexit and potentially leaving the ECHR are two completely separate matters. For the time being, the Country has its hands full with the fallout of Brexit and therefore don't expect any moves on the ECHR anytime soon. Before the 'exit button' is pressed the following needs to happen –

  • A Conservative Party Leadership contest and election of a new Prime Minister. David Cameron made it clear in his 'stepping down' speech that this would take place before the trigger is initiated. Cameron has said he wants a new Prime Minister in place by the Tory Party Conference in October 2016.
  • Once elected by his Party the new Prime Minister will need to determine his Cabinet and Brexit negotiation team.
  • Once that is in place, the new Prime Minister will determine the Brexit timeline (remember the Article 50 exit clause has a 2 year exit period). Essentially the purpose of the exit provisions is designed to make it difficult to leave.
  • That 2 year period can be extended by agreement between the European Council and the UK.
  • How long is a piece of string – these circumstances are so unknown, and the matters to negotiate are so extensive, we just don't know when the UK will be officially 'out' of the EU. It would seem that Trade, Immigration, Workers Rights etc are likely to be the priorities for negotiation.

Once the exit deal is finally negotiated, the UK Parliament will the need to legislate on the changes. We all know how long new legislation can take to be determined, let alone implemented. It just seems, at this very early stage, that any changes to the Convention Rights will be at the back of the queue. David Cameron had previously commented that scrapping the ECHR was not going to happen. It remains to be seen whether his successor maintains the same stance. There is still a manifesto commitment to replace it with a Bill of Rights.

What about DOLS?

You will be aware that the DOLS review by the Law Commission is already underway. That will still continue although it would not be unexpected for the timescales to be extended whilst the Government tries to pick up the pieces from the 23 June 2016 Brexit referendum.