Rights, remedies and state immunity: the Court of Appeal judgment in Benkharbouche and Janah

Steve Peers

Yesterday’s important judgment in Benkharbouche v Sudan and Janah v Libya by the Court of Appeal raised important issues of public international law, the ECHR and the EU Charter of Fundamental Rights, and demonstrated the relationship between them in the current state of the British constitution. The case involved two domestic workers bringing employment law complaints against the respective embassies of Sudan and Libya, which responded to the complaints by claiming state immunity, based on a UK Act of Parliament (the State Immunity Act) which transposes a Council of Europe Convention on that issue.

The question is whether invoking state immunity for these employment claims amounted to a breach of human rights law, given that Article 6 of the ECHR (the right to a fair trial) guarantees access to the courts, according to the case law of the European Court of Human Rights (ECtHR). In turn, this raised issues of EU law, given that Article 47 of the EU Charter of Fundamental Rights likewise guarantees the right to a fair trial, and some of the claims concerned EU law issues (the race discrimination and working time Directives). (Other claims, such as for ordinary wages and unfair dismissal, were not linked to EU law). The two cases didn't concern human trafficking or modern slavery, although sometimes embassies are involved in such disputes too. But they would be relevant by analogy to such disputes, and there would also be a link to EU law in such cases, since there is an EU Directive banning human trafficking, which the UK has opted in to. 

The Court of Appeal, essentially following the prior judgment of the Employment Appeal Tribunal, made a careful study of recent ECtHR case law, concluding that state immunity could no longer be invoked against all employment law claims, but only against those claims concerning core embassy staff. This could not apply to domestic workers; Ms. Janah’s tasks did not involve (for instance) shooting any British policewomen.

But what was the remedy for this breach of human rights principles? At lower levels, the tribunals had been powerless to rule on the claims for breach of the ECHR, since the UK’s Human Rights Act awards the power to issue a ‘declaration of incompatibility’ that an Act of Parliament breaches the ECHR to higher courts only. So the Court of Appeal was the first court that could issue such a declaration, and it did so in this case. (The Court concluded that it could not ‘read down’ the relevant clauses in the State Immunity Act to interpret them consistently with the ECHR).

However, as compared to the effect of EU law, even a declaration of incompatibility with the ECHR is relatively weak, given that the potential remedy for a breach of EU law is the disapplication of national law, even Acts of Parliament if necessary, by the national courts. So the Court of Appeal also ruled that the relevant provisions of the State Immunity Act had to be disapplied, to the extent that they were applied as a barrier to the claims based on EU law. On this point, the Court was following the Employment Appeal Tribunal, which had also ruled to disapply the Act, given that any level of national court or tribunal has the power to disapply an act of parliament if necessary to give effect to EU law.

If I had a pound for every law student who has confused the remedies in UK law for the breach of EU law with the remedies for the breach of the ECHR, I would be very rich indeed. Fortunately, the facts of this case easily demonstrate the distinction between them. Only the higher courts could even contemplate issuing a declaration of incompatibility with the ECHR; and the remedy of disapplication of the Act of Parliament is obviously stronger than the declaration of incompatibility, allowing the case to proceed on the merits (as far as it relates to EU law) rather than having to wait for Parliament to change the law in order to do so. And equally, the case shows the importance of the requirement that a case has to be linked to EU law in order for the Charter to apply: only the race discrimination and working time claims benefit from the disapplication of provisions of the Act of Parliament, and so only those claims can proceed to court as things stand.

From an EU law perspective, the most interesting point examined by the Court of Appeal was the application of the ‘horizontal direct effect’ of Charter rights, ie the application of EU law against private parties (since non-EU States aren’t bound by EU law as States, the court assimilated them to private parties). In its judgment last year in AMS (discussed here), the CJEU distinguished between those Charter rights which could give rise to a challenge against national law based on the principle of supremacy of EU law, and those Charter rights which could not, since they were too imprecise to base a free-standing Charter claim upon. The right to non-discrimination on grounds of age fell within the former category, whereas the right of workers to be consulted and informed fell within the latter category. (Note that the CJEU case law classifies this as an application of the principle of supremacy, not horizontal direct effect, although the final outcome is the same no matter how the principle is classified, at least in cases like these).

The Court of Appeal reaches the conclusion that Article 47 of the Charter is also a provision which is precise enough to be used to challenge national legislation. That’s an important point, since Article 47 is a far-reaching and frequently invoked provision, and applies not just to state immunity issues but to many broader issues concerning access to the courts (including legal aid) and effective remedies.  For that reason, this judgment is an important precedent for national courts across the European Union faced with challenges to national laws based on Article 47 of the Charter, although of course it doesn’t formally bind any court besides the lower courts of England and Wales.

The Court didn’t need to rule on whether the substantive Charter rights raised by these cases would have the effect of disapplying national law, since it wasn’t ruling on the merits of the cases, but only on the issue of access to court. If it were ruling on the substantive issues, it would seem obvious that race discrimination claims have the same strong legal effect as age discrimination claims, as both claims are based on the same provision of the Charter (Article 21). However, claims based on breach of Article 31 of the Charter (the working time provision) might not have that strong legal effect. Indeed, an Advocate-General’s opinion in the pending case of Fennoll has concluded as much.

Furthermore, the social rights in the Charter (such as the rights set out in Article 31) are subject to a special rule in the Protocol to the EU Treaties which attempts to limit the effect of the Charter in the UK and Poland. The CJEU ruled in its NS judgment that this Protocol does not generally disapply the Charter in the UK, but it did not then rule if the Protocol might nonetheless affect the enforceability of social rights. Given that yesterday’s judgment was about Article 47 of the Charter, not about a substantive social right, it was not necessary for the Court of Appeal to grasp this nettle either.

Barnard & Peers: chapter 9, chapter 20

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

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 constrain those 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