Today we have a report from the European Union Committee of the House of Lords, chaired by Lady Helena Kennedy QC, on “the UK, the EU and a British Bill of Rights”.
When I discovered that this Committee was going to do a report on the potential impact of a British Bill of Rights I was initially confused. The European Convention on Human Rights, the European Court of Human Rights and the Human Rights Act are nothing to do with the European Union specifically. Having now read the Report I am still at a loss to discover why this Committee thought this issue was within their remit.
The Secretary of State for Justice’s evidence to us in the course of this inquiry was thus the first public statement in any detail of why the Government thinks a British Bill of Rights is necessary and of what it might contain.
This report assesses that statement, and considers the likely impact of a British Bill of Rights on three areas: on human rights litigation in national courts under the EU Charter of Fundamental Rights; on the UK’s EU legal obligations and international standing; and on the devolved settlements
The first issue (the British Bill of Rights and its contents) is nothing to do with the European Union. The answer to the second (the Charter) is, obviously, “none” as the UK cannot legislate to overturn EU law (without withdrawal). The impact on the UK’s EU legal obligations is, obviously, “none”. The impact on the UK’s international standing of a British Bill of Rights is unlikely to be significant provided that the UK remains a party to the Convention and remains complaint with its international obligations. Again, this is nothing to do with the EU specifically. How the repeal of the Human Rights Act impacts on the devolution settlements is a tricky issue but, again, nothing to do with the EU.
Issue 1: The Case for a British Bill of Rights
The conclusion of this section was the obvious one for anyone familiar with Gove’s evidence to the Committee
The proposals the Secretary of State outlined did not appear to depart significantly from the Human Rights Act
As I have said before, this is largely inevitable if the UK wishes both to remain within the Convention, and comply with Article 13, which requires an effective remedy for breach of Convention rights before domestic courts. (Article 13 is curiously unmentioned by the Committee).
One could, of course, as a result draw precisely the opposite conclusion from that of the Committee. If the proposed British Bill of Rights isn’t going to change very much, it is probably harmless and not worth worrying about.
Issue 2: The EU Charter
The EU Charter of Fundamental Rights is much misunderstood. Unlike the rights under the Human Rights Act it has no equivalent direct effect. EU citizens cannot rely upon it directly against member states. It is parasitic in its application upon other rights that citizens have under EU law. Its impact is therefore necessarily limited, and the practical impact of the Charter has been very small. The list of rights protected under the Charter is quite different from those under the Convention (reflecting their different purposes). (As the Charter applies to the application of EU law and EU institutions, my view is that the UK’s ‘opt-out’ from it is largely symbolic.)
A good example of how the Charter ‘piggy backs’ upon other EU rights is the Delvigne case. A French prisoner argued that his prohibition from voting in European Parliamentary elections contravened Article 39(2) of the EU Charter requiring universal suffrage. The CJEU ruled that the exclusion in this case was lawful as it was proportionate to the gravity of the crime committed. It is perfectly possible to imagine a case where a member state sought to restrict the right to vote in EU elections, but this was considered contrary to EU law as contrary to the Charter. However, this would and could only apply to elections to the European Parliament, it would have no effect in relation to elections to Westminster or at a local level.
What possible impact could any British Bill of Rights have on the Charter? The answer is clearly none.It is simply part of EU law and the UK can no more legislate to overturn it than it can legislate that UK fishing vessels are British owned.
Could the Charter ‘fill the gap’ if the Human Rights Act were simply repealed? Obviously not. Their scope is completely different, one applying to the interpretation of UK legislation and UK public bodies, the other to EU law and EU institutions. The Committee by contrast concludes
The weight of evidence demonstrates that, were a Bill of Rights to restrict victims’ rights to bring legal challenges under the Human Rights Act, more challenges under the EU Charter in domestic courts would be likely. This, in turn, is likely to give rise to more references from UK courts to the Court of Justice seeking guidance on the scope of EU law and the provisions of the EU Charter.
This is very difficult to understand (especially when no example of how this could conceivably happen is given). How could the Charter be invoked directly before the UK courts? Why would the impact on EU law and institutions increase if the Human Rights Act were repealed?
If we abolished the Human Rights Act tomorrow, would this have any impact whatsoever upon the scope and application of the EU Charter?
Issue 3: The UK’s Obligations under EU law
The Committee briefly discusses the issue of the primacy of EU law over UK domestic law. The position here is clear and straighforward: EU law has primacy. This is nothing to do with the Human Rights Act.
Issue 4: The Impact on the UK’s membership of the EU
Is being a signatory to the Convention a precondition of the UK’s continued membership of the EU? The answer is no. Although there is now a requirement that new candidates adhere to the Convention, this was not a condition of the UK’s membership.The committee’s conclusion is
We recognise that there is no formal legal obligation on an EU Member State to remain a party to the European Convention on Human Rights, but our evidence clearly suggests that any attempts by the UK to depart from its standards, or to withdraw from it entirely, would severely strain the UK’s relations and cooperation with other EU States.
Are there informal legal obligations?
Without doubt, the UK’s withdrawal from the European Convention would adversely impact on our standing in the Council of Europe, and more widely in the international community. This does not seem to me to be anything specifically to do with the EU.
Issue 5. The Impact of Repealing the HRA on Devolution
This is difficult question. In relation to Northern Ireland, the Good Friday agreement is predicated on Convention rights being incorporated into the law there (although not on the HRA specifically).
On Scotland, the Human Rights Act itself is not a devolved matter (the Committee seem to assume that it is). By contrast the implementation of Convention rights is not a reserved matter. We are told that repealing the Act in Scotland would be “entering into unchartered constitutional territory.” As an analysis of the legal position this does not, to say the least, suffice.
Whatever else may be said, it is hard to see how this is anything to do with the European Union specifically (unless perhaps everything in the UK is an EU matter?)
Critics of the Convention are often rightly accused of willfully confusing the European Union and the European Convention on Human Rights. The European Court of Human Rights is often called an “EU court” by publications such as the Daily Mail.
It is best to keep the quite separate issues raised distinct.