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Wednesday, February 09, 2011

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.


Anonymous said...

Strange how we can have a referendum on voting reform
( that was not in manifesto & only the Libs want
But not on Europe that 90% of brits Do want!
What a wasted opportunity .

Robert Snare said...

The superb ironies of the past week continue unabated. At the European Security Conference David Cameron, surrounded by the unelected Van Rumpoy, Barosso,Ashton et al, telling the Egyptians how to move forward to a democracy.
Tonight Baroness Ashton, on Sky news, could hardly find the words to endorse the succcess of the Egytian revolution, for that is what it is.

Yesterday was the most significant day when Parliament finally stood up for British democracy and rejected the ECHR demand for prisoner voting rights.

If the British display the same courage and determination as the Egyptians, perhaps we could take some lessons from them on establishing truly democratic institutions.

Robert Snare

John W. Burley said...

There has been a call for "a fresh approach to Europe".
This may be a watering down of what we all should be calling for.That is to be out of the E.U. with all of its tags and apendages.
We need to break away from all of the complete mess that calls itself the E.U. We should do it now!
John W. Burley.

R.Cadwell said...

We could settle all this EU rubbish if we had a PM who first kept his promises and didn't have a yellow back bone, I voted for this man as I thought that he was an honest man but like all our pass leaders they promise one thing to get into power an another once there. We could do with UKIP getting enough votes to get into power as we need another party these three have been the only one's we've ever had what a choice.

Jeff Sheriff said...

We MUST I believe get out of the EU. However, tolerance and inertia is holding us back from doing this. When delivering leaflets for UKIP at last election and more recently. A number of people said to me '...Agree but don't do poloitics.' This will not get us our counrty back. We are TOLERATING OURSELVES OUT OF EXISTENCE. But maybe, with the MP's stance against the prisoners' vote -the worm is turing at last.