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.

Viviane Reding: The EU Commissioner for Mars

Yesterday, Viviane Reding, the EU Commissioner for Justice and vice-President of the Commission, gave a speech saying she wanted to increase the EU's powers to intervene in member states where there is a "rule of law" crisis. Citing the "Roma crisis in France in summer 2010; the Hungarian crisis that started at the end of 2011; and the Romanian rule of law crisis in the summer of 2012", she said she wants to establish a "far-reaching rule of law mechanism, which would include more detailed monitoring and sanctioning powers for the Commission".

Reding also chose to cite in her speech the arrest of David Miranda at Heathrow airport by UK authorities using anti-terrorism legislation.

Reding's big idea is a treaty change to extend the reach of the EU's Charter of Fundamental Rights into member states' domestic legal systems and therefore the power of the Commission to intervene. She called for:

"A very ambitious Treaty amendment – which I would personally favour for the next round of Treaty change – would be abolishing Article 51 of our Charter of Fundamental Rights, so as to make all fundamental rights directly applicable in the Member States, including the right to effective judicial review (Article 47 of the Charter). I have raised this idea already in a speech at the FIDE Congress in Tallinn in May 2012. This would open up the possibility for the Commission to bring infringement actions for violations of fundamental rights by Member States even if they are not acting in the implementation of EU law. I admit that this would be a very big federalising step. It took the United States more than 100 years until the first ten amendments started to be applied to the states by the Supreme Court."

Currently, the Charter can only be used to interpret how EU law is implemented in member states - the UK's 'opt-out'/clarification on the Charter was meant to reinforce this point in the Lisbon Treaty negotiations (that clarification hasn't really worked).

Viviane Reding has long been one of the most far-out there EU federalists but this is a fundamental and outright challenge to national governments' authority. This would be a good time for member states to remind Reding, Barroso et al what their mandate is. If member states are ever to rest back control of the EU, this sort of thing should almost become a sackable offence.

As someone put it to us in Brussels recently: every time Reding opens her mouth, Nigel Farage gains another thousand votes.

From the horse's mouth: How the EU’s Charter of Fundamental Rights WAS to blame for higher insurance prices

Over a year ago now, the ECJ ruled that, from December 2012, insurers can no longer offer different products and prices to men and women based on their sex, since it would constitute discrimination. We estimated that a 17 year old female driver will have to pay an extra £4,300 in insurance premiums by the time she is 26 as a consequence of the ruling.

But, aside from the practical cost and barmy nature of the ruling itself (given that, for example, evidence suggests that, on average, female and male drivers present different degrees of risk), we pointed to a more fundamental issue of democracy.

This concerned the Court's reference to the EU's Charter of Fundamental Rights in its ruling, principally that the insurance industry’s derogation from the Gender Directive was incompatible with both the spirit of the Directive itself AND Articles 21 (non-discrimination) and 23 (equality between men and women) of the Charter.

We noted that this was significant because the UK's protocol on the Charter secured in the Lisbon Treaty negotiations (which the previous government claimed was an opt-out) was one of the reasons cited by the same government for not giving people a referendum on Lisbon (the protocol was later downgraded to a 'clarification').

This led to an exchange of views with the Economist's Bagehot, over whether the ruling had in fact tested the application of the Charter to the UK.

Well, today the European Commission put out this press release on your fundamental rights, safeguarded by said Charter, which states,

"...the Charter increasingly helps to shape decisions by the courts. In 2011, the number of rulings quoting fundamental rights laid down in the Charter rose by 50% at both EU and national level. One such landmark ruling by the EU's Court of Justice stressed the right of asylum seekers to protection from inhuman or degrading treatment when clarifying EU rules for determining which country should deal with an asylum application (MEMO/11/942). The decision effectively banned transfers of asylum seekers to countries where inadequate conditions would compromise their fundamental rights. In March 2011, the Court ruled in the Test-Achats case that different premiums for men and women constitute sex discrimination (MEMO/11/123)..."

This ruling, and the ruling on Greece's treatment of asylum seekers referred to in the above quote, confirm that the ECJ's interpretation of the Charter can have a major impact on the UK and is a reminder of the creeping nature of EU law, which tends to undermine national democratic settlements. Ask the Commission about this, and they will tell you that the Charter doesn’t constitute the "primary" or "most substantive point" in the insurance ruling, so the UK's protocol on the Charter remains untested (if the Commission said otherwise, there would be an almighty legal row with the UK). How ridiculous this line of reasoning is ought to be obvious from reading the Commission's press release, which celebrates the Charter's impact in the same ruling.

P.S. to avoid any confusion, the Charter can only be applied when the UK implements EU law and the Charter has no relevance to purely national law. However, as the insurance ruling made clear, this is often no consolation, since so many areas are now affected by EU legislation.

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.

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.