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