Friday 15 May 2015

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 blogged on 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 earlier on 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 disapply Acts of Parliament, whereas the HRA can only be used by higher courts to declare that 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 here and 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 likely that 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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