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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?

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    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. ?????? A (non-British) EU citizen living in the UK does not have the right to vote for the British MP, who are the ones who decide on UK laws. The UK (and all other EU members) are sovereign countries and free to leave the EU when they want to; that they decide not to do so because they get some benefits in exchange does not make them any less sovereign. – SJuan76 Nov 22 '18 at 12:07
  • And in any case, could you source No discrimination: everyone's rights are equal? The closer thing that I can find is article 14: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status., which introduces lots of nuances. E.g., taking your quote literally, toddlers should be allowed to vote. – SJuan76 Nov 22 '18 at 12:15
  • @SJuan76 yes, good point re EU migrants not having a vote on UK laws but your argument that EU members are sovereign countries having the right to leave the EU is flawed because this proposed deal would deprive UK subjects of that right, particularly in respect of the Northern Ireland Protocal, over which the current proposals provide for the EU to hold a veto over our decision to leave. – samerivertwice Nov 22 '18 at 14:23
  • @SJuan76 re the "toddlers have the right to vote", I think this fails to reduce my argument to absurdity since that can be countered by a clear "competency to do so" argument and the matter of coming of age. But with respect to your Article 14 quote "national origin" is a prescribed characteristic and therefore to deny UK subjects any say in the election of officials and in the creation of laws by which they are to be governed, on the grounds of their nation of origin, must surely be contrary to the Equality Act, do you not agree? – samerivertwice Nov 22 '18 at 14:28
  • @SJuan76 sorry, I didn't answer your question. I may have sourced that "No discrimination: everyone’s rights are equal." from here: libertyhumanrights.org.uk/human-rights/human-rights-act under the heading "What rights does the Human Rights Act protect?" so it may only be an approximation to the law. – samerivertwice Nov 22 '18 at 14:34
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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).


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.

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