26 April 2016

Theresa May yesterday suggested that “if we want to reform human rights laws in this country, it isn’t the EU we should leave but the European Convention on Human Rights (ECHR) and the jurisdiction of its court.”

Is leaving the ECHR but staying in the EU possible?

It’s fair to say that this is a matter of some debate. Ultimately, given the legal ambiguity in the EU Treaties, this is likely to be a political question, which means it is theoretically possible but it is not difficult to imagine that the EU institutions and some other EU states could take a dim view of any such UK decision. (There are also other important factors to consider. For example, it has been pointed out that the ECHR is a key pillar of the Good Friday Agreement, underpinning the peace settlement in Northern Ireland, and that UK withdrawal from the Convention would therefore entail a renegotiation of that agreement.)

Despite often being confused, the European Convention on Human Rights and the Strasbourg European Court of Human Rights are separate from the EU. However, there is an increasing overlap that could complicate any UK decision to withdraw. All 28 member states of the EU are currently signatories of the ECHR and being a signatory to the Convention is a pre-condition for new countries seeking to join the EU. But it can also be argued that there is no formal requirement in the EU Treaties binding on existing member states, such as the UK, to remain signatories to the European Convention on Human Rights.

When asked its view on this hypothetical question in 2007, the European Commission replied:

Any Member State deciding to withdraw from the Convention and therefore no longer bound to comply with it or to respect its enforcement procedures could, in certain circumstances, raise concern as regards the effective protection of fundamental rights by its authorities. Such a situation, which the Commission hopes will remain purely hypothetical, would need to be examined under Articles 6 and 7 of the Treaty on European Union.

Article 2 of the EU Treaties states that the Union is founded on “…the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities…” Other EU member states have the power (under Article 7, to which the Commission refers above) to suspend the UK Government’s EU voting rights if they “determine the existence of a serious and persistent breach” of these values. The question is whether UK withdrawal from the Convention would be a breach of these values in itself? That being said, the practical hurdle for finding the UK in “serious and persistent breach” of EU values is high because it requires unanimous agreement amongst all other states.

What effect would leaving the ECHR but staying in the EU have on UK control over human rights legislation?

Leaving the ECHR could see the UK regain control of human rights principles as enshrined in domestic law, only to see ECHR standards continue to be applied in EU law and via the EU’s Luxembourg courts. Under the EU Treaties, ECHR standards are general principles of EU law and in particular are set out in the EU’s own Charter of Fundamental Rights. That is to say these principles apply to EU law and national laws that apply EU law. As such, they come within the jurisdiction of the Court of Justice in Luxembourg, not the European Court of Human Rights in Strasbourg.

To take a practical example, withdrawal from the ECHR would allow the UK to ignore the Strasbourg court’s rulings on prisoners’ right to vote in general elections – as this is a matter of national UK law. However, as voting rights in European Parliament and local elections are covered by EU law as well as national law, their application in the UK could in future be challenged using ECHR principles at the ECJ.  It is clear that the Home Secretary is no fan of the ECHR. But merely leaving the ECHR would not remove the issue of ‘foreign interference’ in UK application of human rights legislation.

This is a point that the Home Secretary is clearly aware of. But her speech suggested that this is a matter of degree, and that the EU is likely to interfere less rather than not at all:

There are several problems that do apply to the Court of Human Rights in Strasbourg, yet do not apply to the Court of Justice in Luxembourg. Strasbourg is in effect a final appeals court; Luxembourg doesn’t have that role. Strasbourg can issue orders preventing the deportation of foreign nationals; Luxembourg has no such power. Unlike the European Convention on Human Rights, the European Treaties are clear: ‘national security,’ they say, ‘remains the sole responsibility of each member state’.

And unlike the ECHR, which is a relatively narrow human rights convention, our membership of the EU involves co-operation – and, yes, rules and obligations – on a much wider range of issues. The country’s decision in the referendum is therefore a much more complex undertaking.

Therefore, given that her proposal (while theoretically possible) would not deliver complete control over human rights, May’s argument seems to be more about positioning herself as the ‘pragmatic sceptic’: losing control of human rights to the ECHR is not acceptable, from her point of view, because there is little upside. While losing a degree of control over human rights to the EU is different because the scope of human rights issues likely to be decided in the EU is narrower and the EU comes with other economic and security benefits. That this stance places her somewhere between George Osborne and Boris Johnson, her main potential rivals for the Conservative Party leadership, on the question of Britain’s relationship with Europe is no doubt a happy coincidence.