The Conservative Party’s Proposals for human rights: The Council of Europe and the ECHR

Introduction

 

The October 2014 Conservative Party proposals promised to:

 

“End the ability of the European Court of Human Rights to force the UK to change the law. Every judgement that UK law is incompatible with the Convention will be treated as advisory and we will introduce a new Parliamentary procedure to formally consider the judgement. It will only be binding in UK law if Parliament agrees that it should be enacted as such.

During the passage of the British Bill of Rights and Responsibilities, we will engage with the Council of Europe, and seek recognition that our approach is a legitimate way of applying the Convention.

In the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights, at the point
at which our Bill comes into effect. We would do so safe in the knowledge that the text of the Convention itself is enshrined in our own statutes, protecting human rights in line with the will of the British Parliament and the rulings of British Courts.”[1]

The Conservative Party’s manifesto included a much shorter summary of the proposals without the specific details about the relationship with the ECtHR of the Council of Europe and some commentators have taken this as an indication that those proposals have been ditched. This note proceeds on the basis that it is likely that the threat to the link with the ECtHR in the October proposals will be pursued by the new government.

The manifesto, published in April 2015, stated:

“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”

The Queen’s Speech on 27th May included the words “My Government will bring forward proposals for a British Bill of Rights” and the briefing notes stated:

“The Government will bring forward proposals for a Bill of Rights to replace the Human Rights Act.

This would reform and modernise our human rights legal framework and restore common sense to the application of human rights laws. It would also protect existing rights, which are an essential part of a modern, democratic society, and better protect against abuse of the system and misuse of human rights laws.”[2]

The new Secretary of State in the first debate following the Queen’s speech refused to rule out withdrawal from the ECHR.[3]

A law which rendered ECtHR judgments ‘advisory’ would breach Article 46 ECHR, which requires signatory states – as a matter of international law – to abide by the ECtHR judgments against them. It is very unlikely that the Council of Europe could agree to changes in the ECHR to allow this. If the UK withdraws from the Council of Europe, it would be the only country in Europe not to be a member other than Belarus, and the only country ever to withdraw from a human rights instrument apart from Venezuela, and North Korea.

Council of Europe

The European Convention of Human Rights is an international treaty drafted by the Council of Europe and signed and ratified by its members imposing a number of duties on member states – primarily compliance with the rights set out and accepting the jurisdiction of the European Court of Human Rights. The ECHR has been subject to a number of procedural amendments and a number of substantive rights have been added to the original list – both change processes initiated by “protocols”. The latest changes in 15th and 16th Protocols were agreed following the “Brighton Declaration” and at the time the UK held the Chair of the Council of Europe.[4] The UK has always ratified the procedural protocols and has already ratified protocol 15, which attempts to reduce the number of cases arriving with the ECtHR and increases the likelihood that the ECtHR will not rule against a state. In relation to the ratification of additional rights the UK has previously agreed protocols 1, 6 and 13 but not 4, 7 and 12.[5]

Regardless of their likely success, negotiations by the UK to amend the ECHR with other Council of Europe member states to relegate judgments from the ECtHR to the status of advisory opinions and to allow some kind of “democratic override” could begin immediately. These “negotiations” are likely to take some time although the proposals might be rejected pretty quickly by the Council leading to a decision by the new Conservative government to withdraw from the ECHR.[6] There are, apparently, some people in the Conservative Party who would wish to withdraw from the ECHR immediately, some that would prefer to construct a scenario where the UK might be forced to leave because the Council of Europe will not negotiate and some who want the negotiations to be genuine and ultimately want the UK to stay within the system. The key objectives which appears to link all the groups (and some members of other parties) are:

  • the wish to see a “democratic override” which allows those democratically elected (the UK Parliament) to have the final say over what the law should be and on the balance between the rights of the individual and the wider interests of society;
  • that the UK Supreme Court should have the final say over what human rights mean in practice, not the ECtHR; and
  • a wish to see more of the details of how the courts should address privacy, family life and fair trial issues set out in legislation (rather than as a result of the “whims” of the ECHR) (the majority of those involved would still wish to retain the prohibition of torture and retain compliance with articles 2 and 3 – the more “serious” rights).

Withdrawal from the ECHR is relatively easy procedurally because it is in the hands of the government although this would probably require the consent of Parliament.[7] Those wishing to “trigger” expulsion rather than to initiate it immediately might wish to wait to be able to argue that the new UK government had tried to negotiate a better deal and one that respects Parliament’s place in the UK’s constitutional system but that “Europe” refused to budge.   The rejection of the proposal will not obviously lead to the UK’s expulsion from the ECHR itself or from the Council of Europe more generally. What is a more likely scenario is that a final judgment in a pending case by the ECtHR will require legislative change. Parliament, given the new majority and October proposals, might be more likely than in the past to choose to reject the proposed changes in UK domestic law required by the judgment and as a result the Committee of Ministers, who are charged with ensuring that judgments of the Court are implemented[8], will first put pressure on the UK to comply and eventually will need to consider sanctions.

The ministers and civil servants in this scenario would not then have much room for negotiation with other member states on the Committee of Ministers about the implementation of the judgment. All those involved in the negotiations over the implementation of the judgment will be aware of exactly how Parliament has voted and how it wants (not) to deal with the judgment. In practice, the blanket ban on votes for prisoners is still pending could easily be the trigger case for a challenge.[9]

The Committee of Ministers of the Council of Europe has the power (which it has not yet ever used) to refer a refusal by a state to implement a judgment back to the European Court of Human Rights Itself. The Committee of Ministers needs a two-thirds majority to take this action and the representatives from the member states will be very reluctant to take this step.[10] The Court, if it finds that the member state has not, in fact, complied with the judgment following such a referral, then sends the matter back to the Committee of Ministers for them to take action. An intentional and blatant failure to implement a judgment from the Court will be a clear and obvious breach of the ECHR requiring some kind of action – the obvious sanction in the face of a clear and intentional refusal will be expulsion from the ECHR.

However all of this will take a long time and will not be something that the Council of Europe will wish to do. Obviously there are always several pending cases against the UK (including votes for prisoners) and, it is likely that the new proposed Bill of Rights will contain the requirement that the consent of Parliament is obtained before any judgment requiring legislative change are implemented, it could apply immediately the Bill comes into force as an Act. This will trigger a conflict with the Committee of Ministers pretty quickly.

In practice, any change in the law as a result of a judgment by the ECtHR requires the consent of Parliament anyway because it is only Parliament that can change the law. So, in one sense, this particular new proposal from the Conservative Party changes nothing. However creating a new process focused on the implementation of a judgment seems likely to engage the interest of Parliamentarians in a way it has not done so thus far. In the past changes to UK law resulting from judgments of the ECtHR have usually been seen as relatively uncontroversial and the proposed provisions have been added to another, unrelated, government bill and often passed without any serious debate.[11]

The current procedure contained in the Human Rights Act does, however, allow the government to amend legislation more quickly following a judgment from the ECtHR or a declaration of incompatibility from a UK court. This procedure allows the government to use secondary legislation to amend the offending primary legislation.[12] The instrument needed to change in the law does not then need to be in the form of an ordinary bill and to go through all the three stages and in both Houses of Parliament. The “Remedial Order” still needs to be approved by both Houses but usually there is no possibility of amendment and the debate is short.[13] However following the judgments in the ECtHR on the right of prisoners to vote in elections some Parliamentarians arranged for a debate and vote on the judgment and the possible proposals to amend UK law. This debate would not have led to changes in the law itself but the strength of the opposition to the idea of given prisoners the vote had a significant political affect.[14] It is likely that those in the Conservative Party who drafted the October proposals have had this example in mind when considering the mechanisms to ensure consideration by Parliament of judgments from the ECtHR.

Senior civil servants will have started to consider the Conservative Party’s proposals six months ago and will, by now, have drafted detailed papers setting out various scenarios with pros and cons for the new Secretary of State, Michael Gove. Those same civil servants will have also considered how, exactly, the proposals might work in practice and probably already suggested tweaks, amendments and alternative options to those contained in the October proposals to ensure easier implementation. In this context the new government will have been advised that the idea of relegating the judgments of the ECtHR to the status of advisory opinions is unlikely to obtain support from member states but other, less aggressive, options might be more likely to find favour.

One such option would be for some enhanced and sophisticated Parliamentary procedure for dealing with judgments from the ECtHR. The Council of Europe would not object (and might welcome) a process where all judgments have to be considered by the UK Parliament (or a committee of Parliament such as the Joint Human Rights Committee). Nor would there be any opposition to judgments requiring a change in the law being dealt with by Parliament in the usual way (by a bill or part of a bill going through the three stages in each House).

At present the ECtHR system is subject to a fundamental and long-term review and in November 2013 the Council of Europe initiated a further consultation exercise:

“…holding an open call for information, proposals and views on the issue of the longer-term reform of the system of the European Convention on Human Rights and the European Court of Human Rights. This process follows on from the Brighton Declaration, adopted at a High-level conference in April 2012. It is intended to be open and inclusive, allowing questions to be raised and examined concerning all aspects of the Convention system and the Court.”[15]

This gives a new UK government an opportunity to make proposals to change the current system. Certainly some of the discussions about the future of the ECHR in the context of this review have focused on “subsidiarity” and the need for greater democratic input into the current system and it is therefore an opportune time for the UK to suggest changes. However, other states will be wary of dogmatic and Euro-sceptic proposals which are not based on a wish for genuine dialogue.[16]

Insiders in the Council of Europe do not want to see the UK withdraw from the ECHR or to see it forced to leave the system. Their position is based on a number of factors including the fact that the UK is generally:

  • a model of compliance with the ECHR;
  • supports the aims and objectives of the ECHR and the Council of Europe;
  • UK civil servants put in more than their share of the effort to make the systems work and pays its contributions and;
  • if the UK left the ECHR, it would make a large dent in the comprehensive coverage by the ECHR across Europe and send a particularly powerful negative message to states with very poor records of compliance.

It is said that other states like Switzerland might also rapidly follow suit and quit the ECHR and might soon be followed by others like Russia.

No one connected with the Council of Europe appears to be willing to contemplate the idea that the UK would be sanctioned or that there could ever be a two-thirds majority (needed to refer a case that has not be properly implemented back to the ECtHR).

The Council of Europe and the European Court of Human Rights in 2015

There are a number of other factors that might be relevant in the next few months:

  • The Committee of Ministers agreed to put off any further action on the very controversial prisoners’ voting case until September 2015;
  • The UK judge to the ECtHR is coming to the end of his term and the selection process must begin now; and
  • Many of the other judges on the ECtHR are up for renewal and by 2016 half of the ECtHR will be composed of new judges – creating some uncertainty about the direction of the Court.

The Parliamentary Assembly of the Council of Europe (PACE) is a much-neglected body but it is made up of members from the Council of Europe’s constituent parliaments. The delegates from the UK made up of MPs and peers from the majority parties in the UK Parliament are likely to be important as they are already relatively knowledgeable about Council of Europe processes, including the ECtHR, elect the judges for the court and might well provide a conduit for informal communication and negotiations.

Council of Europe and the ECHR’s rules and procedures

 

The UK is both a member of the Council of Europe itself and has ratified many of its specific conventions including, of course, the ECHR, which requires compliance with the judgments of the Court.

Article 58 of the ECHR itself allows a state party to denounce the Convention and withdraw from the jurisdiction of the Court on giving six months’ notice. For on-going or existing cases a denunciation does not prevent the Court giving judgment or compensation being ordered. Withdrawal from the ECHR does not, however, automatically require withdrawal for the Council of Europe.

However, the Statute of the Council of Europe states:

Article 3

Every member of the Council of Europe must accept the princi­ples of the rule of law and of the enjoyment by all persons within its jurisdic­tion of human rights and fundamen­tal freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.

Article 7

Any member of the Coun­cil of Europe may withdraw by formally notifying the Secre­tary General of its intention to do so. Such with­drawal shall take effect at the end of the financial year in which it is noti­fied, if the notification is given during the first nine months of that financial year. If the notification is given in the last three months of the finan­cial year, it shall take effect at the end of the next finan­cial year.

Article 8

Any member of the Coun­cil of Europe which has seriously vio­lated Article 3 may be suspended from its rights of repre­sentation and re­quested by the Committee of Ministers to withdraw under Arti­cle 7. If such member does not comply with this request, the Commit­tee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine.

No state has ever been expelled from the ECHR but Greece, during the time of the military junta, chose to withdraw (it is likely to have been expelled anyway). Withdrawing from the ECHR itself does not necessarily mean that the UK would not be upholding the values set out in Article 3 of the above statute but the expectation of all new Council of Europe member states since the readmission of Greece and the admission of Portugal and Spain some years ago has been that they would ratify the ECHR and sign up to the right of individual petition and the jurisdiction of the ECtHR (since 1998 the last two requirements are no longer optional). It might be now that accepting the jurisdiction of the ECtHR is now seen to be implicit in Article 3 of the Statute but probably this is a political not legal question. However it might well be that the fact of an expulsion on a member state would deter other states from pursuing the same path.

Greece, following the installation of the Colonels’ military dictatorship in 1967, withdrew from the Council of Europe in 1969 before the Committee of Ministers voted for its suspension. The country was readmitted to the organisation in 1974 following the fall of the regime. Turkey was suspended, following the military coup in 1980. In 1984, the country regained its right to vote in the Assembly after democratic elections had taken place. Russia was suspended from the Assembly from 2000 to 2001 as a result of its policies on Chechnya.

The European Union

A failure to protect the rights under the ECHR might also be a violation of the law of the EU and, potentially, lead to sanctions from the EU Court or Commission.

Membership of the EU was originally never specifically conditional on compliance with the ECHR or ratification of that treaty. However all of the other EU member states are parties to the ECHR and new members of the EU have all been parties to the ECHR long before they were allowed in to the EU. Membership of the ECHR and compliance with ECtHR judgments are indicators of respect for human rights and the rule of law – key pre-accession issues. The Copenhagen Criteria state:

“To join the EU, a new Member State must meet three criteria:

  • political: stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;
  • economic: existence of a functioning market economy and the capacity to cope with competitive pressure and market forces within the Union;
  • acceptance of the Community acquis: ability to take on the obligations of membership, including adherence to the aims of political, economic and monetary union.”

The question of continued membership of the EU following withdrawal from the ECHR is a political question not a legal question. The likelihood any scenario is complex and will depend on bigger political factors. Experts from the House of Commons have suggested:

“Regarding EU membership, initially candidate states had to have a “firm intention” or a “declared willingness” to ratify the Convention. Under the Copenhagen Criteria for EU enlargement agreed in 1993, adherence to human rights principles is a condition of membership for aspiring members. However, it is not possible to say conclusively that continued membership of the EU requires the UK to remain a member of the Council of Europe or a signatory to the Convention.”[17]

 

In fact, exclusion from the EU would be unlikely unless human rights in the UK were being violated regularly and the UK had a human rights record significantly worse that the other members states. The test for expulsion is respect for rights in practice rather than the acceptance of a particular treaty although withdrawal might be seen as a significant sign of likely violations in the future.

[1] Protecting Rights in the UK: The Conservative Proposals for Changing Britain’s Human Rights Laws.

[2]https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/430149/QS_lobby_pack_FINAL_NEW_2.pdf

[3] http://www.mirror.co.uk/news/uk-news/michael-gove-fails-rule-out-5780915

[4] http://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf

[5] See http://www.echr.coe.int/Documents/Convention_ENG.pdf, see Appendix 2 of the Blackstone’s Guide to the Human Rights Act, 7th edn. 2015, OUP for a copy of the ECHR text with the amendments made by protocols 15 and 16 included.

[6] Though there might be some support amongst other member states, for instance, the Parliament, Duma, of the Russian Federation in 2011 supported the idea that judgments from the ECtHR should be merely advisory.

[7] The Constitutional Reform and Governance Act 2010, part II, requires the government to lay new treaties before Parliament in advance of ratification giving Parliament the opportunity to object.

[8] ECHR, article 46, see http://www.coe.int/t/dghl/monitoring/execution/default_en.asp

[9] The Committee of Ministers is to review the UK’s position on prisoners’ voting at its meeting in September 2015. The issue of the lawfulness of the imposition of life sentences where the defendant is given a “whole life tariff” has been partially resolved by the ECtHR changing its position but there will be more cases to test the details of this in the ECtHR in the near

[10] ECHR Article 46(4).

[11] See the work and reports of Parliament’s Joint Human Rights Committee, http://www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/130/13002.htm

[12] Section 10.

[13] See the Human Rights Act, Schedule2. Up 31 July 2013, of the 19 final declarations of incompatibility, three were resolved by the remedial order process.

[14] The vote was 234 to 22 in favour of retaining the current ban, col 493, 10 February 2011.

[15] Council of Europe, November 2013.

[16] Original UK drafts of the Brighton Declaration were considerably “watered down” by the majority of other member states.

[17] Parliamentary Sovereignty and the European Convention on Human Rights, House of Commons Library, 6th November 2014, Alexander Horne and Vaughne Miller.

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