Is the proposed Brexit agreement contrary to the Human Rights Act?

Question

Is the proposed Brexit agreement contrary to the Human Rights Act?

May's Brexit Deal as it is currently tabled, sees EU laws continue to apply in the UK, enforced by the Commission and Adjudicated by the ECJ. However under Article 7 the UK is excluded from

the nomination, appointment or election of members of the institutions, bodies, offices and agencies of the Union, as well as the participation in the decision-making and the attendance in the meetings of the institutions

Theresa May envisages the transition period continuing up to 2022, but it could go on for any length of time. Moreover, the EU would have right of veto over the UK's exit from the Northern Ireland protocol.

Immediately there would appear to be problems with the UK's Human Rights Act 1998:

No discrimination: everyone’s rights are equal.

Yet clearly, an EU citizen living in the UK will enjoy superior rights of determination in respect of having democratic rights to determine the UK laws which govern them while UK subjects would not.

Then we have the right:

The right to free elections: elections must be free and fair.

Again, if we take as given what goes to election and who may participate, this is not threatened. But if we take as a premise that fairness as aright extends to the right to participate in elections, surely the deal is starting to look illegal, is it not?

Is a right to democratic determination of ones own laws a human right per se? And if not, is it lawful to reduce the democratic rights of some subset of the polulation in favour of others?

Answer 1

This is more a political question than a legal one, so the answer is more political than legal.

Countries are sovereign, and thus can decide which treaties affect them.

The UK does not need to agree to any treaty with the EU. It can just refuse to sign the agreement, and just go on its own.

Of course, this works both ways. In the same way the EU cannot impose a treaty on the UK about movement of people or the North Ireland borders, the UK cannot impose a treaty on the EU allowing it trade without tariffs.

If the UK does not want the deal, the path is straightforward: the Parliament¹ rejects the treaty proposal. Of course, then probably the EU will be way less amenable to a free trade pact. Someone being free to do something does not exempt that someone from the consequences of doing that something.

If the treaty is put into effect, then at any moment the UK (either from action by the Executive¹ or the Parliament¹, that is to be internally decided by the UK) can just decide that EU trade is not worth following EU regulations and just withdraw from the treaty. Happens all the time.

That the UK cannot unilaterally withdraw from the treaty means is that, should the UK unilaterally decide to leave the "backstop", the UK will be in breach of the treaty and so the EU can ask in international courts for compensation³.

In contrast, in many treaties there are explicit clauses explaining the conditions (e.g. notification in advance to the other parties) that allow for a signatory to "lawfully" withdraw from the treaty.

But certainly the EU cannot impose its laws on the UK against the decision of the Parliament (again, this is pretty much what "the UK is a sovereign country" means).

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¹ Elected by British citizens². So much for "political discrimination".

²Actually it is something more complicated but not because of the EU but of the Empire, as there are some rules allowing citizens of British Overseas Territories or Commonwealth to vote. But that is a question completely internal to the UK.

³And of course, cancel the tariff-free part of the treaty and the agreements for after the backstop ends.