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Friday, October 03, 2014

What would a British withdrawal from the ECHR mean for its EU membership?

Justice Minister Chris Grayling has today announced that a new Conservative Government could pull Britain out of the European Court of Human Rights in Strasbourg unless it secures Council of Europe agreement that the UK Parliament has the final say over its rulings. Grayling wants to ensure that the UK Supreme Court is the “ultimate arbiter of human rights matters”.

Under the plan, the Conservatives would repeal Labour’s Human Rights Act and put the text of the original Human Rights Convention into a new British Bill of Rights.

Parliament would be asked to vote every time the Strasbourg court judged that UK law was incompatible with the European Convention on Human Rights, and the judgment would be binding only if MPs agreed it should be enacted. A future Conservative government would try to negotiate with the Council of Europe, which oversees the convention, but if no agreement could be struck, they say the UK would be “left with no alternative” but to withdraw.

So is this compatible with the UK’s EU membership?

It is by no means certain that this plan would inevitably result in Britain withdrawing from the Convention. But, if this were to happen, Grayling has insisted that the plans are consistent with EU membership. Nevertheless, it is clear that the growing links between the European Convention on Human Rights and the EU makes the matter complicated.

All EU member states have ratified the convention and being a signatory of the convention has effectively become a pre-condition for new countries seeking to join the EU. However, there is no formal requirement in the EU treaties binding on existing member states such as the UK to remain signatories of the convention.

Article 2 of the Treaty on European Union 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...” Elsewhere the EU treaties state that:
“Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.”
Neither of these EU treaty clauses appear to be incompatible with UK withdrawal from the convention and remaining a member of the EU. If the UK were to withdraw, there would certainly be much political fallout and, in theory, other EU member states have the power to suspend the UK Government’s EU voting rights if they unanimously “determine the existence of a serious and persistent breach” of these values. But it would be hard to argue that UK withdrawal from the convention would be a breach of these values in itself – particularly given the commitment to enshrine the convention in domestic law.

Would the UK remain bound by EU human rights law?

The short answer is yes - when applying EU law in the UK. Even complete withdrawal from the convention would still mean that the UK would continue to be bound by the EU’s Charter of Fundamental Rights (which basically replicates the ECHR) and the EU Court of Justice’s interpretation of these rights as they apply to EU law, which in turn is either implemented in UK law or has direct effect. The ECJ’s ruling that insurers could no longer determine their premium on the basis of gender is a prime example.

A further complication is that the Lisbon Treaty gives the EU the legal basis to join the convention in its own right. This could see the European Court of Human Rights court ruling on EU laws which apply in Britain and greater use of the convention by the EU Court of Justice. New European Commission President Jean-Claude Juncker has said he would like to see the EU accede to the convention under his term, but it is important to remember that the UK retains a veto over EU accession to the convention and the logical position would be to use it.

8 comments:

chris williams said...

It would appear as though the conservative party has decided to exit the EU, both from such moves as this, but also from Cameron's commitment to reject free movement of labor.
Is it time for the liberal party to take the only action which could establish that it is part of the coalition - and bring it down immediately?
While it is far from strong, it could pick up some momentum from pro-Europeans who are unhappy with both Cameron and Miliband. (OK, there is not a lot of support for Clegg either, but he could gain credibility by making a stand!)
Let's get on with it; a referendum now, before electing whomever for another five years - and trust that sanity returns to one party or another.

Rollo said...

The European Court of Justice is not all bad. But what is bad is it being able to over-ride our own supreme court.

Peter van Leeuwen said...

The UK was never asked to join, neither has the UK ever been asked to leave the EU. Leaving is ok, as long as all the cost incurred are paid in full by the breaking party. That includes any foreseen damage to continental economies and will have to be estimated and be part of Brexit negotiations. If the UK were not prepared to pay such costs, relationships may turn quite sour quite soon. The continent should not suffer in any way from a Brexit.

Rik said...

So basically not much of a problem (to be expected).
However now the ECJ can play the same role (or start playing it)>

Probably the UK needs a sort of German Grundgesetz Plus set up, to counter that.
An own court that decides whether things are ok according to UK law iso a European Kangaroo Court that in general is more occupied with extending its own powers than properly ruling on cases.

Might give some confusion for the existing things. Although why could one not do it retroactively (and EU law still would have to comply)?
For new stuff all approval would be conditional for as far as say the ECJ is not overactive as usual in extending things to the max.

Anonymous said...

Peter van Leeuwen

Fine.

And will the EuroZone countries by paying the UK's ongoing cost for the mass immigration here because of the disaster that is the EuroZone? A disaster with no end in sight. A disaster that the "sheeple" of Europe just seem to accept even as it gets worse and worse.

I hate to think what it is costing us both economically and socially. Let's not forget that the trade balance is in favour of Europe, not us, so the EU needs to be very careful as to how it acts. Having a mass migration away from the UK and back to Europe in case things "turn quite sour" is going to bring down the EU and EuroZone. No jobs and no prospects back home.

The EU needs to respect the rights of the citizens of each sovereign state. As we know, it is not very good at doing that.

If the EU had followed "due process" and respected the national democracies then it would have insisted on national-level referendums for the handover of each tranche of powers. I would include the ECHR in that too.

And if the relationship should turn sour? What is the EU going to do, start yet another war?

You can keep your "union" as far as I am concerned. It has damaged us badly and is continuing to do so by the day.

SC

Anonymous said...

this whole article can be boiled down to a simple statement:

Grayling is lying.

Anonymous said...

You write, "What would a British withdrawal from the ECHR mean for its EU membership?" It would be a waste of time because the EU as a whole is to eventually to join the ECHR and if we are still in the EU at that time, we would automatically be included in the ECHR whether we wanted to be in it or not. If I know that, then so do all the Members of our House of Commons.

Anne said...

Further to the UK Gov proposing a "new Bill of Rights. Any NEW Bill of Rights would (HAVE TO BE) be put before the people to accept these most wonderful NEW RIGHTS especially brought forward for OUR RIGHTS AND USE. In accepting the Wonderful NEW RIGHTS they would be rejected the old longstanding Bill of Rights and possible Magna Carta that two World Wars were fought for, for us to keep- and protect us forever.

Having achieved what they wanted= the people rejecting the old, for the NEW-even the new could be rejected by the governments eventually, for our present long standing Bill of Rights and Magna Carta are parts of our Long standing Common law Constitution, and to destroy our Constitution is an Act of Treason and protected by Acts of Treason too. Although allegedly some act of Treason were allegedly repealed-in fact, they cannot be so for they are there to protect our own Common law Constitution for all time coming. Many, so very many gave their lives in two World Wars to keep them, rather than obey the laws of foreigners. Now remind me why we are still in the EU? Did any of you agree to be so? Going to vote for more of the same come the General Election? Or are you going to vote for those that want OUT OF THE EU-FOREVER.