Is repealing the Human Rights Act compatible with EU law?

 

Steve Peers

 

The new British government has indicated that it is determined to repeal the UK’s own Human Rights Act (HRA) in the near future. There are a number of legal and political problems with this idea, which are aptly summarised (with many links to further discussion) in a new Jack of Kent blog post. But the issue of the overlap between the HRA and EU law isn’t discussed there. I blogged last year on how the Conservative party’s strategy document on this issue fit very awkwardly with the UK’s EU law obligations, but it’s a good time to update this analysis.

 

First of all, let’s simplify the analysis by assuming that the UK will not withdraw from the European Convention on Human Rights (ECHR), although as discussed in the prior blog post, the strategy document did raise the possibility that the UK will withdraw from that Convention if the Council of Europe raises too many objections to its plans. As I blogged previously, withdrawal from the ECHR could impact upon the UK’s EU membership, but we are not at that stage yet.

 

Secondly, we have not yet seen the details of the government’s proposals to repeal the HRA, but I will assume for now that they will not aim to disapply the EU’s Charter of Rights in the domestic laws of the UK. I have separately bloggedon the reasons why this would be unfeasible, but let’s assume for now (until we see those proposals) that this is not the government’s intention.

 

The core of the government plan (if it follows the template set out in the previous strategy document) is 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 whom the government deems to be sufficiently despicable (for more details, see my critique of the plan here). How does that relate to EU law?

 

The key questions here are: is the plan to repeal the HRA 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 repeal of the HRA 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 repeal of the HRA 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 earlieron this blog.

This is relevant not just to the ‘DRIP’ Act passed by the UK Parliament last year (as I pointed out at the time), but also to any requirement that telecommunications providers retain and hand over the content of communications, which form part of the government’s plans for a so-called ‘Snooper’s Charter’. 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 original plan for HRA repeal would 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. 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. This process has been stalled because in December 2014, the CJEU ruled that the draft treaty to this effect was not compatible with EU law (as discussed here). However, since that judgment the EU has reopened discussions on how to accede to the ECHR.

 

The earlier policy document recognised that there might be a conflict between EU law and the Conservative party’s plans. It stated that the document’s position will be ‘reflected in the rules that will govern the EU’s interaction with the [Human Rights] Court’ (these rules have not yet been agreed, pending a deal on accession of the EU to the ECHR). The policy document also threatened 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 strategy document concluded that human rights issues might be an issue forming part of the overall renegotiation of the UK’s role in the EU which the government is about to embark upon. It stated that if there is anything in EU law which ‘encroaches upon our new human rights framework’, then the renegotiation will have to address it. However, an immediate repeal of the HRA would likely take effect before the renegotiation of EU membership (if successful) takes effect.

 

What are the systemic implications of the government’s repeal of the HRA for EU law?

 

First of all, to the extent that EU law applies to a particular issue, the government’s plans are in principle incompatible with EU law, in the form of 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 explicitly or implicitly make 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. 

In practice, this will mean that despite the repeal of the HRA and the existence of a replacement ‘British Bill of Rights’ in its place, a strong form of human rights protection will still exist in the UK’s domestic law. Wherever there is a sufficient link to EU law, it will remain possible to invoke the rights set out in the Charter. In fact, the Charter has stronger legal force than the HRA, since it can be used by any court to disapplyActs of Parliament, whereas the HRA can only be used by higher courts to declarethat other Acts of Parliament are ‘incompatible’ with the HRA. We have seen recent examples of the strong legal effect of the Charter in the UK in the Benkarbouche and Vidal-Hall judgments (see my discussion of these cases hereand here). And since the Charter has stronger legal effect than the HRA, it is very likely also to have a stronger legal effect (as well as a substantively higher level of human rights protection) than the future ‘British Bill of Rights’.

Indeed, the strategy document implicitly foresaw these problems, when it suggested that human rights protection will likely be on the negotiation table when the UK renegotiates 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. As such, the impact of the Charter in the UK could not be addressed without a Treaty amendment – and it currently seems likelythat the renegotiation will not result in an immediate Treaty amendment.

Secondly, it seems possible that the government’s plans will complicate the process of the EU’s accession to the ECHR. This will be clearer once the draft UK Bill is unveiled, and further steps are taken as regards the EU’s accession to the ECHR. There would be no conflict if the EU internal rules on ECHR accession provide 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.

Overall, then, it is not easy to provide for a general exemption from human rights protection in EU law (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. So quite apart from the other complications relating to the repeal of the HRA, the government would have to accept the continued existence of a strong form of human rights protection in the UK as long as such cases are linked to EU law, at least until the UK is able to renegotiate its EU membership – and probably after that point too.

 

Barnard & Peers: 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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Would the UK’s withdrawal from the ECHR lead to withdrawal from the EU?

Steve Peers

Having long pledged to repeal the Human Rights Act altogether should they obtain a majority of seats in the House of Commons, some Conservative Party figures have recently suggested that they support the UK’s possible withdrawal from the European Convention on Human Rights (ECHR), or at least some sort of national parliamentary override of the European Court of Human Rights (ECtHR) in domestic law (on the details of these plans, see the discussion by Mark Elliott). Indeed, there is a widespread view that one purpose of the recent cabinet reshuffle was to pave the way to this end, in particular by removing the former Attorney-General, Dominic Grieve, who apparently described the plans as a  ‘car crash’ (see further this analysis by Adam Wagner). 

It is sometimes suggested that some or all such changes would necessarily result in the UK having to withdraw from the European Union. Is this the case?

Withdrawal from the ECHR

Of course, it is entirely possible to sign up to the ECHR without being a Member State of the EU: some 19 countries are in this position. But there is no express rule the other way around (see further the analysis in this House of Commons briefing paper). Certainly when the Communities (as they initially were) were initially founded, there was no such expectation. Indeed, France was not a party to the ECHR until the 1970s. 

However, the role of human rights in EU law has evolved considerably since then, first of all with the fleshing out of the role of human rights as part of the ‘general principles of EU law’, then with the adoption of the EU’s Charter of Fundamental Rights (binding since 2009) and most recently with the development of plans for the EU itself to become a party to the ECHR. Furthermore, in all the most recent enlargements of the EU, the existing Member States expected the future Member States to sign up not only to the ECHR, but all of its Protocols, and many other human rights treaties besides. The EU is also a strong advocate of human rights treaties worldwide.

The practice relating to new Member States is underpinned by Article 49 TEU, which states that EU membership is open only to States which respect the EU’s ‘values’. Those values are defined in Article 2 TEU as including ‘respect for human rights’, but there is no express mention of ECHR ratification. In light of the recent practice as regards EU accession, there is undoubtedly an established political principle that EU Member States have to be parties to the ECHR when they join the EU. Logically there must be a corollary principle that they remain ECHR parties after they become EU Member States, no matter when they join the EU. But is this a legal rule?

Article 7 TEU provides that Member States can be suspended from EU membership if there is a ‘serious and persistent breach’ of the values set out in Article 2. There is no power for the EU to fully expel a Member State, but perhaps a country whose EU membership was suspended would be (even) more willing to consider  the option of unilateral withdrawal from the EU, which is provided for in Article 50 TEU.

Short of the ‘red card’ of suspending EU membership, there is also a possible ‘yellow card’ in Article 7(1) TEU. A Member State can be warned by the EU that there is a ‘clear risk of a serious breach’ of the values set out in Article 2 TEU. Neither the red card nor the yellow card provided for in Article 7 has ever been handed to a Member State, and the general assumption is that they would only be used in extreme situations like a military coup. The ‘red card’ would only be issued if all other Member States voted for this, and it could always be argued that the common law and/or a British Bill of Rights (if there were one, following ECHR withdrawal) would prevent egregious human rights breaches from happening in the UK.

There is no express mention of the ECHR in Articles 2, 7 or 49 TEU. However, there are several express mentions in Article 6 TEU, which sets out the basic framework for internal human rights protection within the EU legal order.  First of all, Article 6(3) states that human rights ‘as guaranteed by’ the ECHR are general principles of EU law, although the Court of Justice of the European Union (CJEU) has made clear recently (see the Fransson judgment, for instance), that this does not mean that the ECHR binds the EU as such, at least until the EU actually signs up to that Convention. However, the case law on the general principles frequently refers to the ECHR, and the CJEU has stated for years that it must ‘take account’ of the ECtHR’s judgments in that context.

Secondly, according to Article 6(2), the EU ‘shall’ accede to the ECHR. A draft treaty to that end has been drawn up, and is being reviewed by the CJEU; its judgment is expected later this year. If that ruling is positive, then the treaty would be opened for signature soon thereafter. It will need the unanimous support of all Member States (thus including the UK) to be approved, as well as approval at the national level. It could be argued that Member States are under a legal obligation to approve this accession treaty, in order to facilitate the obligation of the EU to accede to the ECHR. At the very least, it would be awkward if the UK ceased to be a party to the ECHR as a party but had to approve the EU becoming one.

Thirdly, Article 6(1) provides that the EU Charter has the same legal effect as the Treaties. While it is sometimes asserted that the UK has an opt-out from the Charter, due to an ambiguous Protocol on this issue (which also applies to Poland), this is simply not correct. In the NS judgment, the CJEU made clear that the UK was still subject to the Charter in the same way as other Member States. (It is arguably still possible that, due to the Protocol, the UK might not be fully bound by the Charter rules on social rights, but those rights do not generally appear in the ECHR).

The Charter contains many of the same rights as the ECHR, and refers to it several times. In particular, Article 52(3) of the Charter states that the Charter rights which ‘correspond’ to ECHR rights have the ‘same meaning and scope’, and this has been referred to several times by the CJEU. While a House of Commons committee recently suggested that UK legislation should attempt to override the Charter (see my criticism of this bad idea here), the government recently replied that it has a ‘duty to implement all EU law that applies to it’, apparently implicitly ruling out the idea of a change to national law in this respect. 

Taken as a whole, it is therefore right to keep in mind – as Joshua Rozenberg has pointed out – that in many respects EU law offers a stronger degree of legal protection for human rights than the ECHR. However, this is only relevant to the extent that the two areas of law cross over, ie a dispute falls within the scope of both EU law (otherwise the Charter doesn’t apply at all) and the rights set out in the ECHR.

So, while there is no formal requirement that a current EU Member State remain a party to the ECHR, and it would not be easy to enforce such a requirement if it existed, there is a very close relationship between the ECHR and EU law. The UK’s attempts to rid itself of the ECHR would be frustrated by the continued partial application of that Convention within the UK, wherever a dispute touched upon both EU law and ECHR rights. This would be exacerbated if the EU signs up to the Convention in the near future, but the EU’s attempts to this end will in turn be frustrated if the UK government or parliament refuses to approve the relevant treaty. Indeed, that treaty is drafted on the assumption that all of the Member States remain ECHR parties alongside the EU itself, and there would be complex questions to answer in the event that any cases arose concerning the UK, the ECHR and EU law once it were in force.

Taking all of these factors together, it is arguable that there is an implicit de jure legal requirement for all EU Member States to be party to the ECHR, otherwise the EU could not carry out its tasks effectively. Possibly the CJEU will clarify this issue in passing, in its upcoming judgment on the EU’s accession treaty to the ECHR. At the very least, there would de facto be enormous complications resulting from this scenario.

Amendment of domestic law

It is much harder to argue that merely reducing the impact of the ECtHR in UK domestic law is incompatible with EU membership. After all, the UK and Ireland did not give domestic legal effect to the ECHR until the last decade or so. (For an interesting discussion of the issues around parliamentary supremacy and human rights protection, see Gavin Phillipson and Mark Elliott).

There will, of course, still be complications if this route is taken. Every time that there is a link between EU law and the ECHR rights in the UK, it would be possible to enforce the ECHR rules by the EU law route, even if the UK parliament had legislated to ignore the ECtHR’s rulings. If the UK parliament then tried to legislate contrary to EU law to avoid this, there would be a direct conflict between the UK’s constitutional foundations and its obligations as a Member State of the EU.

Conclusions

It would of course be legally consistent for the UK to withdraw from both the EU and the ECHR, if that is what is intended. Some (like Eurosceptic MEP Dan Hannan) are open about their intentions in this respect. But there may be some who advocate withdrawing from the ECHR but not the EU as such. Frankly, that position constitutes either a cynical attempt to trigger an EU withdrawal by the back door (a sort of reverse Trojan Horse), or a negligent approach to this issue.  

Finally, one view is that the protection of human rights is undesirable, at least for the United Kingdom. For example, this argument is put by Dan Hannan, who asks the question “What have human rights ever done for the UK?” Indeed, he asks that question three times, so he obviously thinks it is a good one. But in fact, it is one of the stupidest questions in human history.

The purpose of human rights protection is clearly not to advance the interests of states, but rather to constrainthose states from mistreating individuals.  In particular, the ECHR (among many other things) guarantees a fair trial, protects against torture or other inhuman or degrading treatment, prevents arbitrary detention and ensures freedom of speech and privacy. While Hannan suggests that the UK could solve all those problems by itself, the fact is that it didn’t. Every individual who has won a case against the UK in the ECtHR had to try first (under the ECHR’s ‘exhaustion of domestic remedies’ rule) to obtain a remedy in the UK courts, but failed.

And although it is true that the UK (and some other ECHR signatories) does not breach the Convention as often as some other States, its continued participation in the system is valuable not only as regards protection of British citizens and residents, but as a contribution to supporting human rights protection across the rest of Europe, and indeed worldwide. The withdrawal of a large EU Member State from the world’s most sophisticated system for the protection of human rights would be bound to deal a significant blow to that system.

Barnard & Peers: chapter 2, chapter 9

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