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.

Timing, not substance, is the biggest obstacle to David Cameron's reform agenda

Our Director Mats Persson writes on his Telegraph blog:

In a recent Sunday Telegraph article that received surprisingly little attention at the time, David Cameron came close to setting out a “shopping list” of what he wants to change in Europe. He outlined seven areas, though they were more principles than policies: powers flowing back, a beefed-up role for national parliaments, less regulation and more free trade, limiting the influence of European judges (possibly opting out of the ECHR, which is not an EU institution), tightening welfare benefits for EU migrants, tougher controls on future EU accession countries and no more “ever closer union”.

Nick Clegg – in a strange kind of way – has almost endorsed the plan, saying that "Now [Cameron] doesn't even talk about repatriation, instead proposing a mild seven-point plan, most of which wouldn't even require treaty change." European Commission President Jose Manuel Barroso has said that the EU wants to "cater" to the UK without "threatening the Union’s coherence" (though he was all over the place on EU treaty change). And in the Financial Times this week, Jean-Claude Piris, former legal guru of the European Council – the key decision forum for EU leaders – concluded that Cameron's changes could pretty much be done without actually changing the EU treaties.

For Cameron, this is a double-edged sword. Sceptics at home already see Cameron’s starting position as a “sell-out” – mere presentational changes that will allow him to recommend a “Yes” vote in the 2017 referendum. This is a premature accusation as there’s a huge range within the Sunday Telegraph piece, from token reform to sweeping changes.

Cameron could cobble together a decent package without changing the EU treaties. First, areas like toughening up rules on access to benefits, removing trade barriers, signing free trade deals or scrapping red tape – key planks in Cameron’s renegotiation agenda – just fall under normal Brussels decision-making (which doesn’t meant it will be easy. Think European Parliament). Secondly, “repatriating” powers wouldn’t necessarily require EU treaty change but could still be meaningful, for example devolving the EU’s irrational regional policy (saving UK taxpayers £4bn over an EU budget period) or exemptions from maddening working time rules for the NHS.

Finally, the EU specialises in legal acrobatics. When pushed – say when the bloc’s second largest economy risks leaving – it can be amazingly creative. For example, it created a €440bn bailout fund out of thin air and via so-called political agreements, the Danes got four surprisingly effective opt-outs after having rejected the Maastricht Treaty in 1992, which were incorporated when the next EU treaty came around. Something similar can be done for some of the reforms currently being discussed, including giving national parliaments the right to block or revise EU laws.

So it's right that Cameron seeks to maximise the reforms that can happen without EU treaty change. However, not only would a Treaty change be a form of political insurance to the Tory party and public that things have changed but it's also needed since the treaties simply aren’t fit for purpose. With a more integrated eurozone, we need new organisational principles and practical measures to avoid the EU becoming the eurozone, while allowing powers to flow back to countries that wish to be less integrated. A 2017 referendum should be the start of a slimmed down, flexible Europe, not the end destination. A quick and dirty solution will only bring us back to where we are today – and could well generate a referendum result too close to call, solving nothing.

Ironically, the strongest and most plausible contender for a Treaty change is one measure that Cameron – oddly – didn’t mention in his piece: safeguards against the Eurozone writing the rules for the rest of Europe, which will also effectively kill the notion of "ever closer union". Exactly how this principle will be organised needs careful thought (ideas here), but it’s highly desirable that this principle is firmly enshrined in EU law.

Since it’s the eurozone that is now changing the rules via banking union and other measures, not the UK, Cameron would be given a fair hearing in national capitals on this point. It is conducive to a "grand bargain": the Germans and French solve their catch-22, agreeing to beefed up supervision in the Eurozone in return for Berlin underwriting the euro, while the British ask for safeguards against Eurozone stitch-ups in return for nodding through EU treaty change at 28 (which Berlin still prefers). In this scenario, it’s the German-led EU treaty change that may trigger a referendum in France, not the UK’s.

It's whether it can be done before 2017 that remains the biggest question.

Some rebels are more rebellious than others

We shouldn't fear a robust debate about Europe - whether in Europe as a whole, domestically or within individual political parties. It's called democracy.

This week’s Westminster news cycle has been dominated by Tory splits and rebellions (again). The Spectator’s leader column wonders whether the hardcore rebels would prefer to see their party lose the next election, and as it rightly points, out: there's a time for everything.

Today will see the Commons debate the Government’s Immigration Bill and, depending on the Speaker and time, potentially debate two ‘rebel amendments’: one is Dominic Raab’s on removing foreign criminals’ right to use the European Convention on Human Rights’ Article 8 on family life to appeal deportation. The other is the demand to reinstate rules preventing Romanians and Bulgarians working in the UK. According to the BBC's Norman Smith, Raab's amendment will be called.

However, these two amendments clearly differ significantly in spirit (it is telling that Raab's amendment has a significant degree of cross-party support). Raab's amendment, whether one agrees with it or not, is a constructive proposal to tackle a practical problem with the interpretation and use of the ECHR in the UK that he and others believe is necessary to ensure the Home Secretary's stated policy works - a clever and perfectly legitimate Parliamentary practice.

The architects of the amendment to reintroduce restrictions on Bulgarian and Romanian migrants - again, whatever we think of its merits - must know full well that their amendment is outright illegal under current EU law. Yes, the discussion about Parliament's sovereignty is legitimate and important. However, it's hard to see what this amendment, at this point in time, can or is meant to achieve.

What has the ECtHR done for the UK lately?

A detailed report, written by veteran Parliamentary legal researcher Robert Broardhurst, and commissioned by a group of backbench Conservative MPs including Chris Heaton-Harris MP and Andrea Leadsom MP, has called for action on the European Court of Human Rights (ECtHR) to reinstate Parliamentary democracy.

This important report argues that we must radically change our relationship with the ECtHR so that it can no longer impose trivial notions of rights on the UK against the will of Parliament.

Among the findings the report discovered that:

• Since Britain subscribed to the ECtHR’s jurisdiction in 1966 there have been more than 350 rulings on whether the UK has violated convention rights. The number of judgments made against the UK stands at 271, against only 86 that were successfully defended. This, added to the Human Rights Act's domestic rulings, has led to judgements that fly in the face of public opinion.

Areas looked at where the ECtHR has conflicted with public opinion:

• Prisoner voting rights
• Prevention of deportations
• Extending rights to housing

Broardhurst believes that that the ECtHR's interpretation of human rights in these areas offends the British peoples' common understanding of those rights and that although parts of the Coalition are aware of this problem - the proposed UK Bill of Rights will not offer a full remedy to a growing problem.

Broardhurst's preferred solution offers a more far reaching solution. He argues that to solve the issue once and for all, the democratically accountable UK Parliament should be given the power to overturn ECtHR judgements directed at the UK.

The report suggests that if other signatories to the ECtHR do not agree to this step, the UK may have to withdraw from the Court's jurisdiction. This would also entail withdrawal from the Convention on Human Rights but, as the report notes, the UK could still enshrine the rights of the Convention in national law through a British Bill of Rights. After all, it is the way the rights have been interpreted by judges, rather then the rights themselves, that has been the source of most of the problems.

The UK took the Presidency of the Council of Europe in November 2011 and this will run until May 2012. If reform of the Court is not forthcoming, the number of people willing to consider the option of withdrawal is only likely to increase.

This is of course all complicated by the fact that the EU is set to join the ECtHR in its own right - but that's another story.

Fact check: the EU and the ECHR

It's always interesting to observe instances when those who try to occupy the high ground on Europe, claiming to know the facts about the EU, get the facts wrong. Here's an example:

Over on his Guardian blog, Roy Greenslade - a professor of journalism at City University who occasionally, it appears, takes umbrage at the coverage of the EU in British media - looks at the Daily Express campaign for a referendum on the UK's EU membership.

Nothing wrong with that - it's a perfectly legitimate issue to look at and Greenslade seems like a decent chap. The Express campaign acts as a barometer of public opinion on the EU (a public which, it seems, is increasingly sceptical of EU membership), and there are a number of questions that should be asked about that and similar campaigns, most importantly, what, exactly, is the alternative to EU membership (that's not even close to as straightforward as it sounds and poses a proper intellectual challenge for those who want to leave the EU altogether).

But instead of focussing on this question, Greenslade instead takes aim at what he apparently thinks is an easy target, and says thus:

"There are absurdities to the current campaign too. For example, the final paragraph of today's article states that 'opponents of the EU... complain that our law and order system - and basic common sense - are being undermined by the European convention on human rights.'

Memo to [the editor of the Express]: inform your readers, don't confuse them still further. To aid you in that task, note these facts..."

He then goes on to inform us:

"The European Union has nothing to do with the European convention of human rights...The EU is not a party to the convention and has no role in the administration of the court of human rights."

Problem is: this isn't quite correct (unless Greenslade takes a very presentist view of the matter).

It's true, as we've pointed out before, that the ECHR and the EU are two completely separate organisations and the UK could hypothetically withdraw from the ECHR without having to leave the EU.

However, the EU actually does have quite a bit to do with the ECHR - or at least it will have very soon. If we wish to develop an understanding of the future of European human rights legislation - and how it can impact in the UK and other countries - we need to understand how this works (the recent car insurance ruling - a ruling by the European Court of Justice but with numerous influences - shows why this matters).

So note to Greenslade: the EU and the Council of Europe have actually just agreed a draft agreement which would see the EU signing up to the ECHR, once all 47 member countries of the Council of Europe and the EU itself have ratified the deal - which most likely will happen though it might take some time, given the very technical nature of the agreement (confusingly in the UK, as we understand it, the CoE side of the ratification can be done by the Government unless the House of Commons passes a resolution against it, whereas the EU side of the agreement is covered by the EU Act, requiring a supportive resolution in both Houses of Parliament before the UK can give its agreement).

If ratified, this would indeed make the EU a party to the ECHR and would give the EU its own judge at the European Court of Human Rrights (ECtHR).

In effect, it would make the ECtHR the supreme court of the EU for human rights law, with individuals able to challenge EU laws - and the interpretation of them - at the ECtHR. It would also mean the UK could not withdraw from the jurisdiction of the ECtHR, within the scope of EU law, while remaining a member of the EU. We can agree or disagree that this is a good thing, but if we wish to, say, make a fair assessment of UK media coverage of European human rights laws, we need to understand the increasingly interconnected relationship between the ECHR and the EU (which we have covered here and here for example).

The blogger in question seems to be a keen proponent of media correcting itself when getting things wrong, or when not telling the full story. Curiously, he just gave himself a chance to set a positive example.

Beware of "government by judges"

It looks like the UK is not the only country where the confusing and expanding powers of the European Court of Human Rights and EU's European Court of Justice are testing nerves.

Marc Bossuyt, the President of Belgian Constitutional Court, has, for the second time, fired a warning shot at both the ECHR in Strasbourg and the EU's ECJ.

In a speech welcoming his Francophone colleague, he laments that the two European courts are taking on more and more powers by extending their competences, and warns that this is creating a serious threat of a "government by judges".

With the EU set to sign up to the ECHR this issue is only going to get more confusing (as we have already commented). With the wide variety of rights legislation at the European level continuing to expand, the inevitable overlap and possible conflict between the two courts will make the job of national governments and judges across Europe much harder. Collisions such as the one seen over prisoners' voting rights will become increasingly frequent, and it is not just the UK that is coming to this realisation.

Waking up to 'Europe'

Parliament’s stance against the ruling by the European Court of Human Rights to give prisoners a vote has again inspired UK commentators to take a closer look at ‘Europe’.

The right of prisoners to vote is an ECHR issue – not an EU one (the ECHR is not an EU institution as we're always keen to point out). However, it’s right to consider the influence and mission creep of the ECHR in the same discussion as the influence of the EU itself - for a whole range of reasons. As we’ve argued before, on rights legislation the two are now linked and both suffer from an inherent tendency to expand their own powers into new areas. And in terms of the politics and perception of it all, for most people in Westminster and beyond, there’s little difference between the EU and the ECHR, making it extremely difficult to unbundle the issues in media and political discussions (and given that even senior judges have a difficult time unpicking the patchwork of human rights legislation that exists in Europe today, the blurring of the ECHR and the EU in public perception is more rational than what EU communication-types and others realise).

And there has been no shortage of hard-hitting commentary.

Here’s James Forsyth in the Mail on Sunday:

The Tories try to keep their newly hardened Euroscepticism under wraps when dealing with their Lib Dem colleagues, who remain committed to the European project. But even the Lib Dems have been shocked at how much influence Brussels has on decisions that should be taken at a national level. Nick Clegg was appalled when officials told him that the EU wouldn’t allow VAT to be set at a local level.

And here’s Fraser Nelson in a strong post on the Spectator’s coffee house blog:

Europe was easier to characterise as a fringe issue, not so now….Cameron thought he’d have to play along, even though it made him “physically sick”. But in perhaps the most useful thing the House of Commons has done for two decades, it decided otherwise last week in a free vote. And what are the judges of Strasbourg going to do? Invade?

A healthy precedent was established last week. Britain has rejected that old argument that we have no choice. We do. Parliament is sovereign. We can reject as many Euro laws as we like: from Brussels, Strasbourg or both.

Meanwhile, Tim Montgomerie takes a swipe at Ken Clarke on Conservative Home:

The fact is the Conservative Party is largely united on Europe. The vast majority of Tory MPs and activists, from the Prime Minister down, believe that unelected European judges and bureaucrats have too much power. Given the nature of the Coalition and the economic priorities, significant repatriation of powers may not be possible in this Parliament but we must prepare a manifesto for the next General Election that attempts to address that. So long as Ken Clarke is a significant player in the Conservative Party there is little chance of that happening. I sometimes wonder if he stays in government to prevent the party fulfilling its Eurosceptic instincts

Inevitably, there will be more court rulings from the ECHR and the ECJ (one coming up on pensions for example) - in addition to new Directives and Regulations from the Commission - which will be percieved as interfering in national areas where they don't belong. This isn't the last clash we'll see, but it's a signifcant one.

And hats off to Parliament. This time, MPs did their job.

What will be the consequences of the legal patchwork of European human rights?

With MPs debating voting rights for prisoners tomorrow, there has been plenty of media attention focussed on the European Court of Human Rights (ECHR). But what does this have to do with the EU?

Despite the often repeated misconception, the ECHR and the EU are separate beasts and the UK could potentially withdraw from the ECHR without having to leave the EU. However, it is also wrong to say that “the EU has nothing to do with the ECHR”, which a surprising number of commentators have over recent weeks.

As the briefing we published yesterday shows, future EU accession to the ECHR, the EU’s Charter of Fundamental Rights and the growing amount of EU rights legislation is blurring the lines between the two to the extent that is becoming increasingly difficult to separate them.

EU accession to the ECHR (the negotiations started last year) could allow ECHR rulings to impact on the UK through the back door. The UK would be forced to accept any EU law modified in response to an ECHR ruling.

The case law of the EU's European Court of Justice in Luxembourg and the ECHR in Strasbourg is also becoming increasingly intertwined with the ECJ referring to the European Convention on Human Rights more regularly.

And the EU's so-called “Stockholm Programme”, a five year programme for EU justice and home affairs legislation, will also grant EU citizens new rights that potentially go beyond the European Convention on Human Rights, particularly in criminal and judicial proceedings. Only last year the Lord Chief Justice Lord Judge made this very point, saying that: “The European Court of Justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for [the ECHR in] Strasbourg.”

Lord Judge added,

“The EU has recently signed up to what is called a ‘roadmap’ of five areas of criminal procedure which must be addressed within the next 5 years to protect and guarantee the rights of EU citizens. I thought that was the job of the Convention.”

So, even if the UK Government does magically reach a compromise with the ECHR this will not be the end of it. The confusing array of rights at the European level is only going to become more so and the types of legal wrangling we are seeing over prisoners voting rights is only likely to occur more often.

A discussion on the need to bring back some control over human rights legislation cannot be limited to the ECHR alone, but must, as a matter of fact, also include the EU itself. A start would be to seek a cast-iron opt-out from the Lisbon Treaty's Charter of Fundamental Rights - which, incidentally, the Conservatives promised ahead of last year's general election.

So far the only thing that is for certain is that the consequences of this legal patchwork of European rights are as clear as mud.