A.T. v Luxembourg: the start of the EU-ECHR story on criminal defence rights

Alex Tinsley,  Legal & Policy Officer (Head of EU Office) at Fair Trials, based in Brussels. Twitter: @AlexLouisT

On 9 April 2015, the European Court of Human Rights (‘ECtHR’) gave judgment in A.T. v Luxembourg. The judgment, which will become final unless referred to the Grand Chamber, in finding a violation of Article 6 of the European Convention on Human Rights (ECHR), develops the principles established in the Salduz v Turkey. At the invitation of Fair Trials International, third party intervener, it also takes into account, for the first time, Directive 2013/48/EU on access to a lawyer in criminal proceedings (the ‘Access to a Lawyer Directive’), a possible indicator of future convergence in this area.

Background

The applicant, A.T. was questioned by police following surrender under a European Arrest Warrant (‘EAW’) (as to the cross-border aspect, see the post-script). On arrival, he demanded a lawyer. Police gave information (it is unclear what) which led him to accept to be questioned without one. He denied the offences. He was then questioned again before the investigating judge, with a lawyer present but (a) without having had the chance to talk with that lawyer beforehand and (b) without the lawyer having had sight of the case file prior to that questioning; again, he denied the offences.

A.T. argued that his defence rights had been breached as he had been denied access to a lawyer. The appeal court, and then the Court of Cassation, rejected this, essentially finding that he had agreed to be questioned without a lawyer and that no obligation arose to remedy any prejudice caused. With local remedies exhausted, A.T. applied to the ECtHR arguing a violation of Article 6 ECHR.

The legal territory: the Salduzprinciple

The case was decided by reference to the ECtHR’s 2008 judgment in Salduz v Turkey, which established that a person charged with a criminal offence has a right of access to a lawyer ‘as from the first interrogation by police’, and that the rights of the defence are irretrievably prejudiced if incriminating statements made in the absence of a lawyer are used for a conviction (para 55). There are, however, some unanswered questions about this principle, some of which are resolved here.

EU law in the mix

Salduz caused waves of litigation and reform in Europe, including in older EU Member States like the UK and France. Yet, significant problems remain in practice. This is the ECtHR’s summary of Fair Trials’ view on this in A.T. v Luxembourg: ‘many suspects encounter serious difficulties in the exercise of this right, in particular due to legal or practical restrictions on the right of access to a lawyer, a prevalence of supposed ‘waivers’ of the right whose reliability is questionable, and ineffective remedial action by the courts to repair violations’ (at 59).

With Member States required to cooperate on the basis of mutual trust, such concerns are problematic. So, in 2009, the EU adopted a ‘Roadmap’, a ste-by-step plan to adopt directives on key defence rights under the new legal basis of Article 82(2)(b) of the Treaty on the Functioning of the EU, in order to strengthen mutual trust. After Directive2010/64/EU on the right to interpretation & translation and Directive2012/13/EU on the right to information, came the Access to a Lawyer Directive(together, the ‘Roadmap Directives’), setting minimum standards on access to a lawyer.

These Directives mostly attempt to ‘codify’ ECtHR jurisprudence, but in doing so create new standards and – as for the issue at stake here – in some places may anticipate the case-law. This is significant. As Fair Trials argued in this case, the ECtHR can and does have regard to such measures when developing its case-law, so the presence of the Roadmap Directives raises significant possibility of cross-fertilisation between EU law and the ECHR. A.T. appears to be a first example of this.

The A.T. v Luxembourg judgment

You cannot waive a right that you do not have

The judgment clarifies that since there was in fact no legal right to a lawyer at the initial questioning – this was the case at the time in Luxembourg for the narrow category of persons questioned following surrender under a European Arrest Warrant (EAW) – the purported ‘waiver’ of that right was inoperative (at 71): you cannot waive an entitlement which the law does not confer upon you.

If access to a lawyer is denied, a remedy may be needed even in absence of a confession

That being established, the ECtHR found that the courts had infringed Article 6 ECHR by relying on the statements A.T. made in that context and not taking any remedial action to repair the prejudice caused by the restriction on A.T.’s right to a lawyer (at 72), e.g. excluding his statements (see 73).

It is worth noting, in that regard, that Luxembourg had argued that no violation of Article 6 arose because A.T. had denied the offences (see 55). The logic is that if you don’t confess, the absence of a lawyer does not make any difference. Fair Trials had argued for a more protective line (see 61). Relying on the Article 12 of the Access to a Lawyer Directive, which refers to ‘statements’, not simply confessions, we noted that a person might compromise themselves in other ways, e.g. saying too much or too little, speaking confusedly under pressure, damaging their credibility vis-à-vis other witnesses etc. (see the actual intervention, paragraph 41). The ECtHR followed this line, pointing out that A.T. had ‘changed his story’ during the proceedings and that his early statements, though denials of the allegations, were held against him in that way (at 72). This is a useful addition to a line of cases which had so far only dealt with mostly with total silence, flat denials or clear confessions.

Access to a lawyer includes a right to prior consultation before questioning

The judgment is, though perhaps most notable for its emphasis on the importance of a consultation between lawyer and client prior to questioning (at 86). This is a new development of the case-law, complementing Navone v. Monaco and other cases (79) establishing that there be should assistance during questioning. The legal assistance provided to A.T. during the questioning, without such a prior opportunity, was not ‘effective’ and so did not meet the requirements of Article 6 ECHR (at 89).

Roadmap aficionados will note that in so finding, the ECtHR took account of Article 3(3)(a) of the Access to a Lawyer Directive which articulates this requirement in black and white. This is the first time one of the Roadmap Directives has been referred to in the interpretation of the ECHR, and it raises questions as to possible convergence and how the ECtHR is going to react to rulings from the Court of Justice of the EU (‘CJEU’) on the Roadmap Directives (see comments below).

Access to the case file prior to questioning?

On one point, however, the ECtHR will have disappointed some people. Lawyers in Spain, France and Luxembourg in particular have been arguing for some time that legal assistance is not effective if the lawyer does not have access to the case file prior to questioning, in order to advise the client on an informed basis (more here). The A.T. case gave the ECtHR a chance to say whether such a right arose under the ECHR, and it – or this Chamber, at least – has taken a negative view.

What remains now on this point is Article 7(1) of Directive 2012/13/EU, requiring access to documents which are essential for challenging detention. The Paris bar reckons this is a key to the police case file prior to questioning (see their pleading). The conservative view, which seems closer to the text of the provision, sees this as relevant only to judicial review of detention, and it appears the ECtHR shares the view (see 80). But bearing in mind that (as in Luxembourg) the questioning may be done by a judge who also makes a first decision on detention, the broader view is credible. It seems likely that there will be further instalments in this particular discussion.

Disposal: ensure a fair (re)trial next time

Disinformation about human rights abounds, so it is worth reminding oneself what such an ECtHR judgment actually entails. A.T., accused of serious offences, does not now walk free. The ECtHR did not order his release (it cannot), or award damages. The Chamber, under ECtHR President Dean Spielmann, simply indicated that Luxembourg should give him a retrial compliant with Article 6 ECHR (97). Prosecutors had other evidence, besides the statements made without a lawyer, with which to prosecute, so their case is not lost. The retrial should simply be fair, in line with ECHR and EU norms.

Comments

Interaction between EU law and ECHR has looked unappealing of late. Not long ago, in Tarakhel v. Switzerland, found for the second time that execution of the EU’s ‘Dublin’ system for return of asylum-seekers to other Member States would infringe human rights protected by the ECHR. The CJEU, apparently miffed, then issued its alarming comments in Opinion 2/13, stating that, in obliging Member States to question each other’s compliance with human rights despite EU law obligations of mutual trust, the EU’s proposed accession to the ECHR would interfere with the EU legal order.

For 50 years, the CJEU has dealt with individuals invoking Treaty rights in order to defeat protectionist trade rules, enhance free movement and bring countries closer together in ever closer union. Now all of a sudden the countries are trying to cooperate in justice and home affairs, the individual is invoking rights to resist this, and the CJEU appears concerned. If one adopts this rationale, the issue can be confined to the cross-border sphere.

In the internal context, where cooperation interests are not at issue, a more progressive trajectory can be envisaged. When the CJEU’s Elgafaji judgment recognised that Article 15(c) of the Qualification Directive was intended to provide an additional layer of protection against refoulementfor those escaping situations of indiscriminate violence, the ECtHR quickly responded in Sufi and Elmi v. UK that it was ‘not persuaded’ the standard under Article 3 ECHR was any lower, going a step further than it had in earlier cases. One can discern an element of upward competition here.

What will happen with the Roadmap Directives remains to be seen. The point decided in A.T. v Luxembourg – that one should have a chance to talk with one’s lawyer before being questioned – appears uncontroversial and would have been adopted anyway by the ECtHR. But nevertheless, it offers an example of EU law setting a standard, which the ECtHR then finds exists in the ECtHR too. It will, in that light, be interesting to see how the CJEU will treat new questions without obvious answers in the existing-case-law of the ECtHR, and what the reaction will be from Strasbroug.

The first case on the Roadmap Directives (Case C-216/14 Covaci) is pending, and the comments in the Advocate General Bot Opinion of 7 May 2015 are interesting from that perspective: these ‘minimal rules’ should be seen as ‘irreducable’ fundamentals (32); they should be approached expansively, as strengthening defence rights will strengthen judicial cooperation (33); and, while the Roadmap Direcives respect national legal cultures, national procedures will have to ensure their useful effect or face striking down by the national courts, with the CJEU on standby to give preliminary rulings (34). His conclusions on the specific case require a separate blog post, but this proposed interpretative logic is notable: it suggests, as we notedlast year, that the counterpart to CJEU’s robust defence of mutual trust could be a robust approach to the Roadmap Directives designed to strengthen that trust. If the CJEU’s rulings are expansive, the ECtHR might then be slow to aim any lower, with consequent impact outside the EU. But here one goes further into the realm of speculation.

Of course, for anything to happen, lawyers need to put the issues before the courts. Working with the Legal Experts Advisory Panel (‘LEAP’), our pan-EU criminal law network, we offer free legal training, designed to share ideas across jurisdictions and encourage innovative litigation. The ECtHR listened to LEAP in A.T., and we can help in national cases too (see our comparative law opinions in cases before the Swedish Supreme Court (here) and Belgian Court of Cassation (here)). The idea is to participate in the developing EU-ECHR story and use it as an opportunity to improve defence rights across Europe. If you would like to get involved, contact Fair Trials’ Legal & Policy team.

Another version of this post appeared on the Fair Trials website.

Barnard & Peers: chapter 25

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The difference between torture and other ill-treatment: Cestaro v. Italy and the “prohibited purpose” requirement

 

Christina Kosin (LL.M. Edinburgh) Ph.D. candidate and academic assistant at the German Police University

What is the central element which distinguishes torture from inhuman or degrading treatment or punishment? Some scholars claim that the “prohibited purpose” requirement of the torture definition is the most central as well as the only criterion which is decisive in differentiating between that crime and other forms of ill-treatment.. However, in my view this is incorrect, and indeed the recent judgment of the European Court of Human Rights in Cestaro v. Italy shows (once again) that the “prohibited purpose” component of torture is not the only decisive criterion in distinguishing the crime from other inhuman or degrading treatment or punishment.

The judgment

Mr Cestaro was among the protesters surrounding the G-8 summit in Genoa, Italy from 21^st to 22^nd July 2001 (para. 7). On the first day of the summit of the world’s leading industrial States around 100,000 protesters gathered and demonstrated against globalisation (para. 19). Various radical groups such as the so-called “black blocks” were amongst the peaceful anti-globalisation protesters and engaged in violent and/or criminal conduct such as the looting of the city (para. 12). During the two days of incidents, hundreds of protesters and police forces were injured and one young person died (paras. 18-21). From the 21^st to 22^nd July 2001, Mr Cestaro and other protesters were housed in a school, which was stormed by the Italian police at that time. Mr Cestaro and others were brutally ill-treated while peacefully and legally lodging in the school (para. 182). The actual aim of the police mission was to search the school for evidence that could lead to the identification and possible arrest of members of the “black blocks” (para. 182). Mr Cestaro was subjected to repeated kicks and beatings with the tonfa, which is considered a potentially lethal weapon. As a result, Mr Cestaro suffered multiple fractures and a permanent impediment in his right arm and right leg (para. 178). The ECtHR ruled that the treatment by the police amounted to torture.

Ultimately he challenged the Italian state before the European Court of Human Rights (ECtHR), which issued its judgment in the case on 7 April. He alleged that Italy had committed a material and procedural breach of Article 3 of the ECHR, which states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Neither torture nor the terms “inhuman or degrading treatment or punishment” are defined in the Convention. The Court’s practice has shown that it understands torture as defined in Article 1 (1) in the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). According to this definition, torture needs to be inflicted on a person

“for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind”.

This is the so known “prohibited purpose” requirement. Next to this, there are four more elements of the UNCAT torture definition namely (1) the act must be inflicted intentional, (2) the act must cause severe, physical or mental, pain or suffering, (3) the treatment must be inflicted by or at the instigation of or with the consent of or acquiescence of a public official or other person acting in an official capacity and (4) pain arising out of lawful sanctions is not included.

The issue at hand is that the prohibited purpose requirement is mistaken for the only criterion which is able to differentiate between torture and less serious ill-treatment. This confusion arose because of various reasons. The European Commission on Human Rights, which used to rule on cases together with the ECtHR, stipulated in the 1969 Greek case that torture “is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment” (p. 186). This was interpreted to mean that the purpose requirement is the distinguishing element between torture and inhuman or degrading treatment or punishment while the other elements remain static. Further, the ECtHR has never classified a treatment which lacked the purpose requirement as torture. In addition, some scholars claim that the drafting history of the UNCAT, the travaux préparatoires, indicates that this criterion is the sole distinguishing factor between the two forms of ill-treatment. Although these reasons sound compelling, the interpretation was wrong and the prohibited purpose requirement is not the sole decisive factor as is shown below.

In section “Aperçu de la jurisprudence en matière de « torture » “, the Court provided a brief overview of its jurisprudence concerning Article 3. In the subsequent section “Application en l’espèce”, the ECtHR applied the facts to the case. Both sections elucidate that the prohibited purpose criterion is a vital but not the only requirement to differentiate torture from inhuman or degrading treatment or punishment.

In the former section, the Court did not highlight the ostensible uniqueness of the prohibited purpose requirement. Rather, the Court showed that different criteria of the treatment can be decisive in classifying an act as torture. The Court highlighted that torture can be distinguished from other ill-treatment by the special stigma which is attached to the crime – torture implies very serious and cruel pain and suffering as well as the deliberate/intentional infliction of such pain. In the Court’s words, “[o]utre la gravité des traitmens, la « torture » implique une volonté délibérée.”  (para. 171).

Then, the Court referred to cases in which it found a combination of the gravity of the treatment and the intentional element such as in Aksoy v. Turkey and Yaman v. Turkey (para. 172). In this context the ECtHR noted that all these cases contained a purpose to obtain information, to punish somebody or to intimidate the person (para. 172). This is the first time the ECtHR mentioned the element of the prohibited purpose. The ECtHR further elucidated that it put a special weight on the severity of the pain in some cases such as Aslan v. Turkey or on the arbitrariness of the violence in other cases such as in Romanov v. Russia(para. 173-174). Towards the end of this section the Court explained that it did not classify some police actions as torture such as in Krastanov v. Bulgaria as the prohibited purpose element was missing and because the pain was inflicted for a short duration only (para. 175). This constitutes the second time when the Court mentioned the purpose criterion. Lastly, the Court stipulated that some cases such as Gäfgen did not constitute torture because the level of cruelty required was not reached (para. 176).

The ECtHR clearly revealed that various components can determine whether a particular treatment constitutes torture or inhuman or degrading treatment or punishment: the gravity of the treatment, the intentional infliction of the treatment, the severity of the pain, the arbitrariness of the violence, the prohibited purpose, the duration of the treatment and the level of cruelty of the act. The Court did not classify these examples as exhaustive and one can assume that other factors of the treatment as well can trigger a distinction between torture and other forms of ill-treatment. The prohibited purpose criterion of the UNCAT torture definition is not the only decisive factor.

In the section “Application en l’espèce”, the ECtHR provided reasons for classifying the treatment by the police as torture. In its reasoning, the Court did not explicitly state which element of the conduct by the police was decisive for classifying the violence as torture and not inhuman or degrading treatment. The arguments by the ECtHR suggest that a variety of characteristics of the treatment contributed to the Court’s decision.

The Court put forward that the pain was inflicted by the police with the purpose to punish and to retaliate and with the aim to cause pain and suffering (para. 177). The prohibited purpose by the police was hence to punish and retaliate. This is the first and last time that the ECtHR referred to the purpose requirement in this section. The Court noted that there is no denying that the pain and suffering was of particular seriousness and cruelty (para. 179). As mentioned above, the applicant suffered from a permanent impediment resulting out of the beatings he received. Further, it was stated that there was no link between the applicant’s conduct and the force used by the police. The Court emphasised that Mr Cestaro did not resist in any way and that the infliction of pain was thus disproportionate (para. 180).

Although the mission of the police was to search the school, the public officials immediately used force (paras. 180-182). Instead of trying to enter the building peacefully and negotiate with the protesters, the police stormed the building by breaking down the gates and promptly used violence against the protestors (para. 183). The Court then went on and stressed that the police tried to justify its actions by arguments such as the protection of the nation was at stake (para.184-185). It is indeed true that the 21^st July was marked by heavy violence through the looting and devastation of the city of Genoa (para. 20). One can imagine that the police was under paramount pressure and strain throughout the whole day. The Court, however, correctly observed that the situation in the school was entirely different as the protesters were calm and did not resist the violence of the police (para. 186). Based on these grounds the Court reached the conclusion that the treatment by the police amounted to torture as understood in Article 3 ECHR (para. 190). The ECtHR put forward several reasons for classifying the treatment by the police as torture but it did not single out one specific factor. It seems that the immediate, disproportionate and serious infliction of pain was vital for the Court to arrive at its decision. The prohibited purpose criterion was not the triggering criterion in this case.

Comments

The Cestaro v. Italy case shows that the prohibited purpose element in the UNCAT definition is not the sole criterion which distinguishes torture from other inhuman or degrading treatment or punishment. The presumption that the purpose requirement is the most important feature of torture does not automatically mean that it is the only one.

As indicated at the outset, Cestaro v. Italy is not the first case which revealed that the prohibited purpose requirement is not the sole factor able to distinguish between both crimes in the UNCAT. In the case Ireland v. the UKin 1978, the ECtHR ruled that the five techniques employed by the British forces did not constitute torture because they did not reach the level of cruelty and intensity as implied by the term (para. 167). In Selmouni v. France 1999 the Court reached a judgment on similar grounds. The ECtHR stated that the victim was subjected to torture because the pain and suffering was of particular seriousness and cruelty (para. 101-105). In Romanov v. Russia 2002, the Strasbourg Court found a multitude of reasons why the treatment by the prison wards constituted torture. However, it put a special emphasise on the arbitrariness of the beatings the victim received (para. 70).

These cases already revealed that other factors than the purpose requirement can make a difference between torture and inhuman or degrading treatment or punishment. Nevertheless, some still claim that only the purpose requirement can be decisive. They base their arguments on the travaux préparatoires of the UNCAT as well as old case law from different treaty bodies. The Cestaro v. Italy case reiteratesthat the prohibited purpose criterion is not the sole element which is capable of differentiating between torture and other ill-treatment.

One can now assume that the consequences flowing from this case and other similar jurisprudence of the ECtHR, will mainly concern theoretical discussions among legal scholars. The consequence could, however, have negative effects beyond that. The Strasbourg Court is not the only organ which uses the UNCAT definition of torture in its cases concerning violations of Article 3 ECHR. The Committee Against Torture (CAT) as well as the Human Rights Committee (HRC) provide decisions on the basis of Article 1 (1) UNCAT. The former body applies and interprets the UNCAT and the latter body enforces the International Covenant for Civil and Political Rights (ICCPR). If the ECtHR, the CAT and the HRC use different grounds for distinguishing torture from other ill-treatment, this could shed a negative light on the consistency and the trustworthiness of these bodies. Considering that the ban on torture is international, the jurisprudence should be consistent as well – at least with regard to the most important and international bodies which decide on torture cases, should it not? In the worst case scenario, the victims of torture could additionally suffer from legal uncertainty.

 

Barnard & Peers: chapter 9

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Could EU law save Paddington Bear? The CJEU develops a new type of protection

 

Steve Peers

Many readers may already be familiar with Colin Yeo’s brilliant blog post, imagining Paddington Bear’s unpleasant encounter with British immigration law. But could EU law save Paddington Bear, in particular by creating a new form of protection for those who have to flee their country of origin?

Background

EU law has regulated in detail two forms of international protection: refugee status (based on the UN’s Geneva Convention) and subsidiary protection status, for those who don’t qualify for refugee status. (There’s also EU legislation providing for temporary protection, but the EU has never used it). But there are people who don’t qualify for either form of status. When do they have a right to stay?

This question is relevant in a number of cases. For instance, Paddington Bear could argue that he was an ‘environmental refugee’, fleeing catastrophic events in his country of origin that were not caused by humans (or even bears). (I’m converting Paddington into a human for the purpose of this blog post, just as Colin does in his). Others might lack a right to stay, but can’t be removed for practical reasons, for instance because they don’t have documents that prove their nationality, and so the country which they probably come from refuses to accept them back. Or they have a serious illness, but the developing country which they come from lacks the resources to treat it: so sending them back would, in practice, amount to a death sentence.

It’s the last of these scenarios which forms the subject of the CJEU’s two recent rulings in M’Bodj and Abdida. (Note that these judgments should be read in that order, and it would be highly misleading to read one but not the other). However, these judgments might well have implications for other groups of people as well – perhaps including even our marmalade-loving bear.

Judgments

In the M’Bodj case, a non-EU citizen, having failed in his requests for asylum and stay on medical grounds in Belgium, was then the victim of a violent attack there. So he requested a disability allowance that was only available, on the facts of his case, if he could show that he was eligible for subsidiary protection. According to the EU’s qualification Directive, subsidiary protection must be granted if the applicant is facing any one of the following three situations: (a) the ‘death penalty or execution’; (b) ‘torture or other inhuman or degrading treatment or punishment of an applicant in the country of origin’; or (c) ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’. (The EU has more recently adopted a revised qualification Directive, but it didn’t change this particular definition).

The CJEU has previously interpreted the third of these grounds, in its judgments in Elgafaji and Diakite. But it has not yet interpreted the first two grounds. Mr. M’Bodj argued that the second ground applies, on the basis that the European Court of Human Rights (ECtHR) has interpreted Article 3 ECHR, which equally bans ‘torture or other inhuman or degrading treatment or punishment’, to mean that, in exceptional cases, people who would die if they were sent back to their country of origin, due to the inadequate medical treatment there, cannot be sent back.

However, the CJEU rejected its arguments. In its view, since the qualification Directive listed specific human activities as the source of persecution or serious harm, this form of ‘serious harm’ had to be the result of ‘a form of conduct on behalf of a third party’, so ‘cannot therefore simply be the result of general shortcomings in the health system of the country of origin’. This interpretation was bolstered by the preamble to the Directive, which says in effect that the Directive does not apply to those allowed to stay ‘on a discretionary basis on compassionate or humanitarian grounds’. It did make an exception for cases where the person concerned had been intentionally deprived of health care. Just because the ECtHR interpreted Article 3 ECHR to mean that people in Mr. M’Bodj’s situation could not be removed to their country of origin, that did not mean that they were necessarily entitled to subsidiary protection under the EU Directive.

The Directive does state that Member States can have ‘more favourable standards’ as regards qualifying for refugee or subsidiary protection status than those set out in the Directive. But such higher standards have to be ‘compatible’ with the Directive. In the Court’s view, it would indeed be incompatible with the Directive to give subsidiary protection status to Mr. M’Bodj, since there would be ‘no connection with the rationale of international protection’.

Read in isolation, the M’Bodj case means that those facing awful conditions in their country of origin that were not caused by humans have no right to refugee or subsidiary protection status. Their legal position is governed only by the ban on removal to their country of origin, set out in ECtHR case law, along with whatever limited benefits they may have under purely national law. There are a wide variety of such national law rules, as documented in a study for the European Migration Network. For Paddington Bear, this would mean that he could be sent back to his country of origin, unless the conditions there breached Article 3 ECHR standards. In that case, he could remain in the UK, but probably could not expect a very nice life.

However, the Abdida case, decided on the same day by the CJEU, suggests that in some cases, those who are unable to qualify for subsidiary protection or refugee status can use the EU’s Returns Directive to obtain a different type of protection. Mr. Abdida had similarly claimed that he should receive leave to remain on medical grounds in Belgium, and was appealing against the refusal of this application. While the appeal was pending, he was refused social assistance, on the grounds that it was only available to those whose challenge to their removal had suspensive effect; his challenge did not have that effect under Belgian law.

The national court asked the CJEU to interpret EU asylum legislation, and in light of its judgment in M’Bodj, the CJEU simply said that EU asylum law did not apply. While Member States have an option to apply EU legislation on reception conditions and asylum procedures to other types of applications for protection, Belgium has not chosen to do so.

The CJEU could have left the case there, but it didn’t. Instead, it decided to give the national court a detailed answer to questions it had never asked, on the interpretation of EU legislation that it had never referred to – the Returns Directive, which governs the process of removing irregular migrants from the territory.

First, the Court ruled on Mr. Abdida’s procedural rights. While the Returns Directive does not require legal challenges to removal to have suspensive effect, it was necessary to consider the impact of the EU Charter of Rights, Article 19(2) of which bans removals to States where the person concerned would face a serious risk of inhuman or degrading treatment. This had to be interpreted in light of the ECtHR case law on Article 3 ECHR discussed above, which bans removals on ‘medical grounds’ in exceptional cases.

How does this impact the interpretation of the Returns Directive? Article 5 of that Directive says that when they implement the Directive, ‘Member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the [person] concerned, and respect the principle of non-refoulement’. The CJEU ruled that Article 5, ‘taken in conjunction with Article 19(2) of the Charter’, means that Member States ‘may not…proceed with…removal’ where removal ‘would infringe the principle of non-refoulement’ on medical grounds.

This ban on removal had the consequential effect that the remedy against removal hadto be suspensive, despite the optional wording of the Directive on this point, because otherwise Mr. Abdida could suffer irreparable harm if sent back to his country of origin before his appeal was decided.   

Secondly, the CJEU ruled on his social rights. Article 14 of the Directive says that except where irregular migrants are in detention, where they are given a time for voluntary departure or their removal is postponed, Member States must ‘ensure that the following principles are taken into account as far as possible…: (a) family unity with family members present in their territory is maintained; (b) emergency health care and essential treatment of illness are provided; (c) minors are granted access to the basic education system subject to the length of their stay; and (d) special needs of vulnerable persons are taken into account’.

In the Court’s view, Mr. Abdida qualified for this treatment because his removal had to be postponed under the Directive, which requires postponement where suspensive effect of an appeal has been granted. Oddly, the Court did not mention that the Directive also requires postponement where removal would violate the principle of non-refoulement, although this rule was obviously relevant to Mr. Abdida as well.

It should be noted that the Directive gives an option to Member States to postpone removal in other cases, too. On that point it specifies that ‘Member States shall in particular take into account: (a) the third-country national’s physical state or mental capacity;’ and ‘(b) technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification’. In these cases, the persons concerned could also invoke the safeguards set out in Article 14, since that clause applies regardless of the reasons for postponement of removal.

Yet on the face of it, Mr. Abdida’s specific claim for social assistancecould not be successful, since such assistance is not mentioned in Article 14 at all. Indeed, the preamble to the Directive states that pending return, the ‘basic conditions of subsistence should be defined according to national legislation’. But the CJEU ruled that such legislation still had to be ‘compatible with the requirements laid down in’ the Directive. In this case, the right to the provision of health care would be ‘rendered meaningless if there were not also a concomitant requirement to make provision for the basic needs’ of the person concerned. However, that right only had to be provided ‘as far as possible’, on the condition that the person lacked the means to provide for his own needs; and it was up to Member States to ‘to determine the form’ which the provision of basic needs took.

 

Comments

At the outset, it should be noted that the qualification Directive and the Returns Directive have a different territorial scope. The former applies to all Member States except Denmark, but including the UK and Ireland. The latter doesn’t apply to the UK and Ireland, and it applies to Denmark and the non-EU Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) only in certain cases.

So, in light of this recent CJEU case law, my advice to Paddington Bear would be to take the tube a few stops from Paddington to King’s Cross & St. Pancras station, and stow away again, this time on a Eurostar train to Brussels. (My apologies for facilitating a breach of immigration law, thereby infringing the EU’s Directive on that subject. And even greater apologies for inflicting upon the world the consequential change of name: it will be much harder to love ‘Gare du Midi Bear’.) Or alternatively, he could stow away on a train to Disneyland Paris – and create work for an army of copyright lawyers.

The Court’s judgments raise questions about the scope of international protection as defined by the qualification Directive, and about the new possibilities of protection arising under the Returns Directive. For the sake of brevity, let’s call that latter concept ‘alternative protection’ (technically, we should probably call it ‘Returns Directive protection’, but I can’t bring myself to use that term).

First of all then, the qualification Directive. The central point here is that there is no right to subsidiary protection merely due to the lack of decent health care in the country of origin, unless access to that health care has been blocked. The Court does not expand further on that exception, but presumably a parallel argument could be made for refugee status, where access to essential health care is blocked on one of the grounds (such as race, religion or political opinion) set out in the Geneva Convention, since that would surely constitute a form of persecution.

More broadly, the Court rules out a subsidiary protection claim unless the conditions in the country of origin have been caused by a ‘third party’ as defined in the Directive (namely the State, persons or groups controlling the State, or non-State actors). While the Court didn’t rule on this point as such, the logic of its judgment suggests that ‘non-State actors’ have to be humans. Also, it’s implicit that indirect causation isn’t sufficient. It could certainly be argued that the lack of sufficient health care in developing countries is ultimately the fault of corrupt dictators and elites who hoard those countries’ wealth, and/or the legacy of (neo-)colonialism and slavery. Equally, many believe that environmental displacement results from climate change caused by human activity. But it seems unlikely that the CJEU would accept this line of argument.

Furthermore, the Court has ruled out Member States using their power to apply more favourable rules for international protection in such cases. The CJEU had only ruled once before on this issue, in the case of B and D, when it ruled that States could not grant refugee status to persons who were excluded from that status. It was possible to interpret that judgment as meaning that Member States were only constrained from granting more favourable treatment when international law requiredthem not to do so. But the M’Bodj judgment goes much further than this. So the CJEU hasn’t just refused to raise the floor for international protection – it’s significantly lowered the ceiling.

It should be noted that the requirement that more favourable standards be compatible with EU law applies in all other EU asylum laws, as well as in some EU migration legislation, such as the Returns Directive. The M’Bodjjudgment might therefore have implications for these laws too. But the rule doesn’t apply to all EU immigration laws, and there’s no good reason to assume that a ‘compatibility’ requirement ought to apply in those cases where the EU legislature has deliberately decided not to insert one.

So what more favourable standards can Member States apply? In the case of the qualification Directive, the Court says that they must fall within the scope of international protection. It doesn’t elaborate further, but this presumably refers back to the key concept of persecution or serious harm caused by a ‘third party’. Higher standards can therefore apply only in relation to the Directive’s definition of ‘refugee’ and ‘subsidiary protection’. For instance, it should surely be open to Member States to grant subsidiary protection to persons fleeing indiscriminate violence even where the threat is not ‘individual’, or where the applicants are not civilians.

Secondly, what are the implications of the Abdida judgment for the new possibility of ‘alternative protection’? To understand this concept better, it should be compared to the elements of EU law governing international protection: the allocation of responsibility for an application (ie, the ‘Dublin rules’); the substantive grounds for protection; the procedures for determining whether there is a protection need; and the benefits which an individual receives during the determination process (and afterward, if his or her claim is successful).

Beforehand, though, some general points about the Court’s approach to the Returns Directive in Abdida.  When it was initially adopted back in 2008, that Directive was castigated by NGOs as the Devil incarnate, spurring on Member States to all sorts of inhumane treatment of irregular migrants. Over the years, the CJEU’s interpretation of the Directive has (generally speaking) ensured that irregular migrants are better treated than the Directive’s initial critics thought that they would be. The judgment in Abdidagoes even beyond this, and transforms an instrument of repression into (in some cases) an instrument for protection. It’s like going into a vegetarian restaurant, and being served a bacon sandwich.

For meat-eaters – with the obvious exception of Ed Miliband – that would be a pleasant surprise. So what’s the problem? The problem is that it’s difficult to take a law that was drafted to expedite the removal of migrants, and using it to help them instead. The CJEU tried to overcome this in the Abdidajudgment by performing a series of feats of legal alchemy: redrafting the national court’s questions from scratch; turning an obligation to ‘take due account’ of non-refoulement into a ban on removal; making an option to grant the suspensive effect of appeals into an obligation; transforming the ‘principle’ of obtaining health care into a rule; and adding social assistance to the list of benefits which Mr. Abdida has to receive.  Yet despite all this, a lot of effort will still be required to make the Returns Directive function as an instrument to grant individual protection.

To see why, let’s look at those elements of the protection process, starting with the allocation of responsibility for an application. There are no ‘Dublin rules’ applicable to alternative protection cases. So if Paddington Bear managed to make his way to Brussels or Paris, Belgium or France could not invoke formal rules requiring the UK to take him back. The position would be different though, if he had applied for asylum in the UK first, before making his way to another Member State. In that case, the Dublin rules would apply, so in principle the UK would have responsibility for him, since he crossed the UK borders without authorisation before he set foot in any other Member State. But this normal rule would have to be disapplied in his case, since unaccompanied minors can usually change the country which is responsible for their application (see the discussion here).

In fact, in real life, most of those using the ‘alternative protection’ route would likely have applied for asylum first (as is evident from the facts of the Abdida and M’Bodj cases), so the Dublin rules as such would apply to them. According to the CJEU, they could therefore only resist being sent back to the responsible Member State if there is a complete breakdown of the asylum system there. For Paddington, the demented attentions of Nicole Kidman’s character, or the grim reality of British immigration law as described in Colin Yeo’s blog post, would not meet that threshold.

Next, what are the substantive grounds for alternative protection? We know from the Abdidacase that they include at least non-refoulement, and crucially also that the concept of non-refoulement in the Returns Directive and the Charter is wider than the concept of international protection. It covers at least ‘medical cases’, and arguably also other cases that fall outside the scope of refugee and subsidiary protection status but within the scope of Article 3 ECHR (for instance, persons excluded from refugee status or subsidiary protection status). It could also be argued that it covers environmental cases, such as the fictional destruction of talking bears’ habitat, or the very real scenario of sinking islands. Article 5 of the Returns Directive also refers to the best interests of the child, the state of health of the person concerned and family life, so logically these could also potentially be grounds for alternative protection. But it’s not possible to claim alternative protection on the basis only that it’s impossible to carry out a return decision in practice: se the Mahdidecision earlier this year (discussed here).

Moving on to the procedures for determining whether there is an alternative protection need, there are three elements here: access to the process; administrative procedure; and judicial protection. There’s an obvious problem with access to the process, for the Returns Directive cannot be ‘accessed’ unless there is a pending returns decision. So we have the odd scenario where people facing expulsion (Mr. Abdida) are better off in terms of health care than those with residence permits (Mr. M’Bodj). The Returns Directive requires Member States to issue return decisions to those whose stay is not authorised, but it leaves them an option to allow people to stay if they wish; in that case, the return decisions must be rescinded. Otherwise, the Directive is silent on whether return decisions expire or can be renewed or rescinded. There’s no provision for an individual to ask for a return decision to be issued, even where it’s possible that it might make the person concerned better off.

Next, the administrative procedure during the returns process has been addressed in the CJEU recent judgments on the right to be heard in Returns Directive cases, discussed here. It’s notable that the judgment in Boudjlidaspecifically requires national authorities, before issuing a returns decision, to consider any issues related to Article 5 of the Returns Directive. However, on the whole the concept of the right to be heard in Returns Directive cases, as developed by the Court is significantly weaker than the rules on interviews, et al, set out in the asylum procedures directive.

Conversely, as for judicial protection, the suspensive effect of removals set out in the Abdida case is stronger than the equivalent provisions of the asylum procedures Directive. It’s not clear if this would apply to other cases where an ‘alternative protection’ argument might be made though. Article 13 of the Returns Directive also contains other rules, on: the independence and impartiality of the appeals body (which actually need not be a judicial body); requirement for a merits review; access to legal advice; and legal aid. It might be arguable by analogy with the suspensive effect point in Abdida,that at least in some cases, Article 47 of the Charter confers stronger rights than the Directive requires.

Finally, the benefits which an individual receives during the determination process, if his or her removal is postponed, are (as noted above) family unity, essential health care, education for minors, protection for vulnerable persons, and written confirmation of their status. We know from the Abdida judgment that this list of entitlements is not exhaustive, and can be extended to protection of basic needs in individual cases. In that case, the CJEU implicitly accepted that there would be no point providing health care for Mr. Abdida if, while he received it, he was being left to starve to death in the streets.  This is surely not the only type of case where basic needs have to be provided for: should an unaccompanied minor be left without food and shelter also?

What about the two provisos mentioned by the Court: a means test, and Member States’ power to ‘determine the form’ which provision of basic needs take? On the first point, it should be noted that the employer sanctions Directive (discussed here) gives Member States an option – but not an obligation – to permit irregular migrants to take up employment. Possibly Member States could take into account other income being provided by families, friends or charities. On the second point, Member States’ discretion does not extend to an absolute power to detain the people concerned, since the grounds for detention and conditions for detention set out in the Returns Directive would apply. But as regards other aspects of basic needs, Member States would surely be free to decide on the details of housing and financial support. So sadly, Paddington Bear could not insist on staying with Hugh Bonneville’s family – and would have to settle for marmalade from Aldi, not Marks & Spencer’s.

 

Barnard & Peers: chapter 9, chapter 26

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Roadkill: the EU Charter of Rights after the Conservative party’s changes to UK human rights law

Steve Peers

Most drivers, at one time or another, have felt an unpleasant bump as their car ran over an unfortunate small animal which had chosen precisely the wrong time to scoot across the road. Some drivers are devastated, while others are mildly upset or indifferent. But a few are exhilarated at the thought that they have eliminated an irritating obstacle in the way of their unseemly rush to reach their destination.

The latter attitude aptly sums up the Conservative party’s attitude to the role of EU law in their proposals to reform UK human rights law, unveiled today.

I have already blogged on the problems with this proposal at a domestic level, but there are problems as regards its relationship with EU law too.  

First of all, we should be clear what today’s proposal does not do. There is a widespread perception that it suggests that the UK withdraw from the European Convention on Human Rights (ECHR). But it doesn’t suggest this, at least not yet. The assumption in the document is that the UK will remain a party to this Convention, although it raises the possibility that the UK will withdraw from it if the Council of Europe raises too many objections to today’s plans. This may simply be a concession to those who think that these proposals do not go far enough (!) in eviscerating human rights protection in UK law. So while I blogged this summer on what would happen to the UK’s EU membership if it withdrew from the ECHR, that question does not yet arise.

Nor does today’s proposal suggest that the UK should disapply the EU’s Charter of Rights in its domestic law. A House of Commons committee suggested that earlier this year. The idea is utterly bonkers, for the reasons I blogged on at the time. But again, it isn’t immediately relevant.

What today’s document does do is propose to weaken the domestic system of human rights protection, decouple it from the ECHR system and introduce new rules which weaken substantive protection of human rights for any group of people which the drafters of the proposal deem sufficiently despicable. How does that relate to EU law?

The key questions here are: are the new proposals compatible with EU law? If not, to what extent? And what are the consequences?

At the outset, we should note that the EU Charter of Rights and the rights protected by the ECHR don’t always overlap. So today’s proposals could not create any conflict where (a) the Charter applies, but the ECHR does not (as regards social rights, for instance), or (b) the ECHR applies, but the Charter does not – because the Charter only applies where there is a link to EU law, as the CJEU set out in the judgment in Fransson. There’s only a possible conflict where both the Charter and the ECHR apply to an issue.

What sort of cases would these be? I suggest three examples, although this isn’t an exhaustive list. First of all, any limitations on the right to a fair trial granted to criminal suspects which resulted from today’s proposals could conflict with the EU legislation on their rights  to interpretation and translation, and their rights to information about proceedings, which the UK has opted in to. (There are other EU measures and proposals in this area, but the UK hasn’t opted in to them).

Secondly, any requirement that telecommunications service providers retain data for handing over to law enforcement authorities falls within the scope of EU law, since that would constitute a derogation from the rule in the EU’s telecom privacy Directive. Derogations from EU law fall within the scope of the Charter, as the CJEU recently ruled in Pfleger; I have discussed this point (as regards national data retention laws) in detail earlier on this blog. 

This is relevant not just to the ‘DRIP’ Act passed by the UK Parliament earlier this year (as I pointed out at the time), but also to any requirement that telecommunications providers retain and hand over the content of communications, following the Home Secretary’s latest plans unveiled this week. On the other hand, interception of communications directly by the police or security services would not fall within the scope of EU law, since there are no EU measures dealing with such issues in a purely domestic context.

Thirdly, the Conservative party would like to strip ‘illegal’ immigrants and foreign criminals of the possibility of invoking at least some (if not all) human rights. Due to the UK’s opt-outs from EU justice and home affairs law, not all EU measures dealing with immigration issues apply to the UK. But depending on how these demonised groups are defined, this could result in a conflict with EU rules on the free movement of EU citizens and their family members, or with EU legislation on asylum (the UK is still bound by the first phase of this legislation, and has also opted in to parts of the second phase of it).

In most of these cases, we can’t be certain that the new plans would conflict with EU law until we see the exact text of the proposals (coming later this year). However, it’s already clear, in my view, that the DRIP Act conflicts with the EU Charter in part.

What happens in the event of a conflict? There are two issues here. First of all, the EU Charter refers to the ECHR as regards those Charter rights which ‘correspond’ to ECHR rights, such as the right to a private and family life and the prohibition on torture. It says that the relevant Charter rights have the same ‘meaning and scope’ as their ECHR equivalents. The explanations to the Charter make clear that the case law of the European Court of Human Rights also applies in this context.

Secondly, the Treaties provide for the EU itself to become a party to the ECHR. Negotiations on the treaty to this effect are complete (the Conservative policy document is simply wrong when it states that they are ‘ongoing’). However, the signature and ratification of this treaty is held up while the Court of Justice of the European Union (CJEU) considers the question of whether this process is compatible with EU law. Its judgment is expected soon. The EU must also adopt internal rules governing this issue.

Today’s policy document recognises that there might be a conflict between EU law and the Conservative party’s plans. It states that the document’s position will be ‘reflected in the rules that will govern the EU’s interaction with the [Human Rights] Court’. It also threatens a veto over the ratification of the EU’s accession treaty to the ECHR if ‘the UK’s new human rights framework is [not] respected’.

More generally, the document concludes that human rights issues might be an issue forming part of the overall renegotiation of the UK’s role in the EU which the Conservative party supports. If there is anything in EU law which ‘encroaches upon our new human rights framework’, then the renegotiation will have to address it.

Obviously these human rights plans will not come to fruition unless the Conservative party forms a majority government, since the Labour and Liberal Democrat parties strongly oppose them. If that does happen, though, what are the systemic implications for EU law?

First of all, it seems possible that they will complicate the process of the EU’s accession to the ECHR. This will be clearer once the draft UK Bill is unveiled, the CJEU has ruled on the ECHR accession issue, and the Commission proposes the internal rules which will govern the EU/ECHR relationship. There would be no conflict if those internal rules provide, or the CJEU requires, that the judgments of the European Court of Human Rights will have, after the EU’s accession to the Convention, as weak an impact on EU law (and Member States’ actions within its scope) as the Conservative party suggests should be the case for the UK. Time will tell whether this is the case.

Secondly, and more immediately, it seems unlikely that the Conservative plans are compatible with the Charter as interpreted in light of the ECHR, and the jurisprudence of the European Court of Human Rights, by the CJEU.  The CJEU’s case law for many years has insisted that EU law must be interpreted not only in light of the Convention but in light of the other Court’s case law. But these are precisely the two elements of the UK’s Human Rights Act which the Conservative strategy paper most strongly opposes.

So the new proposals would only be compatible with EU law if they contain a general savings clause, making the new ‘British Bill of Rights’ entirely subject to the special role for EU law in the UK as set out in the European Communities Act.  Conservative Eurosceptics are no more likely to suggest this than the proverbial turkeys are likely to vote for Christmas.

Indeed, the strategy document implicitly foresees as much, when it suggests that human rights protection will likely be on the negotiation table in the event of UK renegotiation of its EU membership. The problem with this is that human rights protection is a general legal rule that forms part of the constitutional foundations of EU law.

So it is not easy to provide a general exemption from human rights protection (as the failed attempt to do so for the UK already, the infamous Protocol 30 attached to the Treaty of Lisbon, confirms). Nor is it very likely that other Member States would be keen to allow it if it were. It follows that today’s strategy document, if the Conservative party wins a majority and takes the document seriously once in office, is likely to increase the risk of a failed renegotiation and, therefore, the UK’s exit from the EU.

Barnard & Peers: chapter 2, chapter 9

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The Worst of all Possible Worlds: the Conservative party’s human rights proposals

Steve Peers

Today the UK Conservative party has formally unveiled its proposals for reforming the system of human rights protection in the UK. I will comment further on their implications for EU law soon. But for now, I want to address the fundamental flaw with these proposals: the combination of a weaker system for protection of human rights with a lower standard of protection.

Assuming that we believe in the concept of human rights at all – and the Conservative party document says that it does – then there is a genuine debate we can have about two issues: the mechanismfor protection of human rights and the substanceof the human rights to be protected. Let’s take these points in turn, in the context of the Conservative party’s paper.

As for the mechanism of protection, there are two fundamental and interrelated aspects: the relationship between parliament and the courts, on the one hand (the national angle); and the relationship between national and international systems of protection on the other (the international angle).

On the first point, most liberal democracies have a primarily written constitution that has effect as a basic law, meaning that it takes precedence over acts of parliament or other legal measures adopted by politicians or civil servants. Most of those countries choose to incorporate human rights protections into their constitution, with the necessary result that courts, not parliaments, have the final say over human rights protections.

Of course, this is a simplified model: in many countries, some rights (like social rights) are not protected in the constitutional charter of rights, and so it falls to legislatures to decide how to protect them. And it’s also possible for legislatures to decide when to limit those rights which may be limited on public interest grounds (‘qualified’ rights). In some cases, such as in Canada, legislatures have a more general power to override some of the constitutional rights.  

On the second point, there are a number of regional human rights systems which have some form of court to adjudicate upon disputes. While international treaties are, of course, binding as a matter of international law upon the states which ratify them, it does not necessarily follow either that the treaties themselves or the judgments of the courts created by those treaties take effect as the domestic law of the states which ratify them.

So it’s possible to have a strong system for human rights protection in a domestic constitution, but with a limited role for international courts. The prime example of this is the USA, where the courts can overrule the legislature on human rights issue, as a matter of constitutional law (and the constitution is difficult to amend, if the politicians wished to overturn such rulings), but there is only a very limited relationship between national and international systems of human rights protections.

Within the UK, though, the national and international systems for human rights protection have been effectively fused by the Human Rights Act, which gives constitutional protection to human rights as set out in the European Convention of Human Rights (ECHR), and as interpreted by an international court, the European Court of Human Rights (ECtHR). While the national courts and the ECtHR don’t have authority as such to invalidate acts of parliament, there is a general perception that the ECtHR in particular is ‘telling parliament what to do’.

In order to address this, the Conservative plans aim to do two things: to create a purely national system  of human rights protection, in the form of a ‘British Bill of Rights’ which would accompany the repeal of the Human Rights Act, and to decouple the ECHR system from domestic law. The form in which they would do this would clearly weaken human rights protection, as compared to other models, since it’s clearly assumed that parliament would be supreme over the UK courts (the national angle), and the intention is to strip the international system of any significant impact at domestic level.

There are certainly fundamental democratic arguments for both these changes. National courts, unlike a national parliament, have no direct electoral legitimacy; and international courts are even less democratically legitimate. True, the ECtHR judges are in fact elected by the Council of Europe’s Parliamentary Assembly, made up of national parliamentarians. But the Council of Europe, even more than the EU, lacks a demos, ie a link between the population of the 47 Council of Europe members as a whole and its Parliamentary Assembly as a political unit.

While it is possible that national legislatures may have less concern about the rights of minorities than national or international courts, it’s equally true that in practice, the effective protection of human rights depends upon political will. The American Bill of Rights didn’t prevent slavery. Nor did it begin to deal with the severe racial discrimination that followed it until the 1950s. And no-one would suggest that Putin’s Russia is a model liberal democracy, just because Russia has ratified the ECHR.  

The problem with the Conservative plans then, is not just that they would weaken both the national mechanism for protection of human rights and its relationship with the main international human rights system which binds the UK. It’s that they would also significantly lower the substance of human rights protection within the UK. So they would simultaneously reduce substantive human rights protection and strip away much of the current means by which human rights are protected.

In particular, the plans would reduce human rights protection by: lowering the protection against deportation to face torture, or other inhuman or degrading treatment; providing for detailed possibilities for limitations of Convention rights; redefining some of the rights in the Convention, including as regards (again) the absolute ban on torture, or other inhuman or degrading treatment; introducing a threshold below which ‘trivial’ cases could not succeed; and limit the territorial scope of human rights protection.

Another leaked policy document goes further, although it’s not clear what the status of this document is. It would effectively remove human rights protection from various groups considered undesirable, such as travellers, ‘illegal’ immigrants and foreign prisoners.

In short, while the new policy document states that the text of the rights in the ECHR would as such be set out in an Act of Parliament, that is quite simply a lie. The intention is to accompany that list of rights with detailed limitations and interpretations that would, in practice, remove the substantive protection of those rights in a large number of cases.

Furthermore, the plans do not deserve to be called a ‘Bill of Rights’.  That concept denotes a system where either the courts have the final say in the protection of human rights (such as in the USA), or at least a system in which the legislature has set out a broad list of rights which the public enjoys in principle, even if the legislature has the final say on their interpretation.

The Conservative proposal suggests instead the worst of all worlds: a highly limited national system of human rights protection, the defenestration of the link with the international human rights system, and a significant lowering of substantive human rights protection. While the UK has a proud tradition supporting the protection of human rights internationally, this plan would undermine that history, and could well be used as a model by tyrants worldwide.

Barnard & Peers: chapter 9 

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