Habeas corpus and UK rights post-Brexit

Habeas corpus is the legal term for a writ that summons a detained person to court, for closer inspection into the legitimacy of their detention. In Latin the term literally means, ‘you may have the body’. The habeas corpus Act of 1679 is based on medieval law (1215)of the Magna Carta’s article 39, which reads, “No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land”. If it is established that a prisoner is being held illegally, the detainee is usually released by the court immediately.

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Throughout English history, habeas corpus has been suspended due to conflict, for example during World War II, and the confinement of prisoners of war. Habeas corpus has been virtually superseded by the Police and Criminal Evidence Act of 1984, which dictates the length of time a prisoner may be detained without charge. In England today, the practice calls for a hearing, involving the parties concerned, to be held in place of awaiting the issue of a writ.

What does this mean for the UK post-Brexit?

The European Union is a membership of 28 countries which allows the freedom of movement for people, goods, services and funds between them. In June 2016, the UK voted against remaining in the European Union which has raised questions regarding the rule of habeas corpus. Nowadays, UK law gives detainees access to rights over their confinement, through the 1998 UK Human Rights Act (HRA), as opposed to EU law. There could be changes to these rights however, if the Government’s plans to repeal the Human Rights Act (which somewhat includes the European Convention on Human Rights into domestic law) and replace it with the Bill of Rights. According to Sir Paul Jenkins QC, the former head of the Government Legal Department, this will mean that the Brexit vote ‘seriously increases the chances of the UK opting to leave the ECHR’, (The Law Society Gazette, 2016). Prior to Brexit, the Court of Justice of the European Union (CJEU) in Luxembourg had the last judicial word on the interpretation of EU legislation. As the UK is now no longer part of the EU, the CJEU may cease to have influence over UK regulation, however these changes will probably take a while to come into effect.