The future of the UK’s relationship with the European Convention on Human Rights (‘ECHR’) has been a matter of political debate for several years. Now the issue has arisen in relation to the UK’s future relationship with the EU. The European Commission recently suggested that it could remove law enforcement and judicial cooperation from any future partnership were the UK to “denounce” the ECHR. But how has this issue developed?
What is the ECHR?
The ECHR is an international treaty that only member states of the Council of Europe may sign. There are 47 member states signed up, including the UK. The ECHR, which set up the European Court of Human Rights (‘ECtHR’), lists rights member states have undertaken to respect. Rights include the right to life, the right to a fair hearing, and the right to respect for private and family life. The Human Rights Act 1998 meant UK nationals could rely on the ECHR rights before UK courts. An individual who believes that a UK court has not respected their ECHR rights may still bring a claim before the ECtHR once they have tried an appeal in UK courts.
What changes to human rights in the UK have been proposed?
For several years, proposals to amend the Human Rights Act 1998 and introduce a British Bill of Rights have been floated across political parties. Amongst other things, the Conservative Party has previously argued that the current law has created a culture of “risk aversion” amongst public authorities, leading to “friction” in policy areas such as immigration and counter-terrorism.
In 2015, the Conservative party manifesto pledged to scrap the Human Rights Act 1998 and pare back the role of the ECHR in UK law. In 2017, the Conservatives also signalled that they were seeking to change the human rights landscape once the UK had left the EU. The 2017 manifesto said:
We will not repeal or replace the Human Rights Act while the process of Brexit is under way but we will consider our human rights legal framework when the process of leaving the EU concludes. We will remain signatories to the [ECHR] for the duration of the next Parliament.
Most recently, the December 2019 Conservative party manifesto contained further commitments to update the Human Rights Act 1998. Plans were also included, and later announced in the Queen’s Speech, to set up a constitution, democracy and rights commission to make recommendations “that restore people’s trust in […] democracy and the institutions that underpin it”. The Government has said it would set up the commission in its first year.
In autumn 2019, the revised political declaration set out a future UK-EU relationship and promised to “respect the framework of the ECHR”. The UK-EU political declaration set the direction for the future relationship negotiations.
What has the EU said?
EU ministers approved the final negotiating mandate on 25 February 2020. This set out the basis for the EU’s position in the forthcoming negotiations between the UK and EU.
The final mandate says that a UK-EU security partnership should include an automatic termination of both law enforcement and judicial cooperation in criminal matters if the UK “denounce” the ECHR. This is because the EU believes that the partnership should be “underpinned by commitments to respect fundamental rights”. The mandate also calls for an automatic suspension of the security partnership if the UK does away with domestic law that gives effect to the ECHR. The draft mandate included both stipulations and they remained unaltered in the final mandate.
When the draft mandate was first published, members of the House of Lords quizzed the Government about the European Commission’s stance on law enforcement and judicial cooperation. Lord Wood of Anfield (Labour) asked the Government for reassurance that it had no plans to “abrogate, depart from or restrict access to the ECHR in anyway”. In response, Baroness Evans of Bowes Park, Leader of the House of Lords, said the Government was “proud” of the UK’s standing in human rights and it would “not want to do anything to put that in jeopardy”. Following further probing from Lord Kerr of Kinlochard (Crossbench), Baroness Evans echoed her previous statement. She said that the Government would not put the UK’s international reputation for human rights “under threat” during any negotiations.
Where does this leave us now?
The Sunday Telegraph reports (£) that the Government is unlikely to accept the proposed clauses in the EU’s negotiating mandate requiring the UK to retain the ECHR. By not accepting these clauses, the UK would be at liberty to leave the ECHR or repeal the Human Rights Act 1998 in the future.
The Government’s approach to the negotiations, which the Government published on 27 February 2020, says that the UK is ready to discuss law enforcement and judicial cooperation in criminal matters. It highlighted that human rights would underpin cooperation. The Government agrees that both parties should have the right to suspend or end the agreement, however, unlike the European Union’s mandate, it believes that any agreement should not give the reasons for doing so. The Government said:
In line with precedents for EU third country agreements on law enforcement and judicial cooperation in criminal matters, the agreement should not specify the reasons for invoking any suspension or termination mechanism.
The terms of reference on the UK–EU future relationship negotiations confirm that law enforcement and judicial cooperation in criminal matters will make up one strand of the negotiations. Following the end of the first round of negotiations on 5 March 2020, Michel Barnier raised concerns about the potential impact if the UK no longer applied the ECHR. He said that “ambitious cooperation” requires both sides to be committed to respect a person’s fundamental rights. He continued:
I say this is serious, I say this is grave because if the United Kingdom’s position does not move, it will have an immediate and concrete effect on the level of ambition of our [security] cooperation which will remain based on international conventions but will not be as ambitious as we wish.
The UK’s position is that an agreement between the EU and the UK should not specify how either side protects and enforces human rights and the rule of law within its own autonomous legal systems.
The outcome of these negotiations remains to be seen.
Is this related to the Court of Justice of the European Union?
No. Issues surrounding the Court of Justice of the European Union (CJEU), also known as the European Court of Justice, are distinct from those relating to the ECtHR. The CJEU is an EU institution, compared to the ECtHR, which is an international court. Issues include the jurisdiction that the CJEU should have over any UK–EU agreement.