Europe consists of two separate legal systems, each of which has a separate human rights framework: the Council of Europe and the European Union. The Council of Europe has 47 member states including Russia.
The European Union on the other hand has 28 member states and includes arrangements for the free movement of goods, persons, services and capital. The UK is a member of both systems, but the forthcoming referendum on 23 June is asking the electorate to decide whether or not to continue membership of the European Union.
At the same time, the Government has also promised to scrap the Human Rights Act 1998 and break the link with the European Court of Human Rights.
The European Court of Human Rights is part of the Council of Europe system and so this process is separate to the decision on whether to remain a member of the European Union.
As we see here, the two European systems at times overlap and are intertwined. This explainer helps to disentangle some of the issues relating to a complex and fragmented UK human rights framework that draws on two separate European legal systems.
Potential reform or exit from either system is considered in the context of implications for UK citizens at the national and devolved level.
The UK is a member of the Council of Europe and the European Union. Both European systems have separate human rights instruments and separate courts. Each has its court (the Council of Europe’s in Strasbourg, and the European Union’s in Luxembourg), and they adjudicate separately on human rights issues.
Whilst not looking at the same case at the same time, each could still be examining very similar issues because there is an overlap in the types of rights protected.
The UK has a duty to comply with the decisions of these courts in different ways and the types of remedy available under each system differ.
The Council of Europe, the European Convention of Human Rights and the European Court of Human Rights
The Council of Europe emerged after the Second World War when the countries of Europe came together to codify human rights with a view to securing peace.
The UK played a key role in drafting the Convention of Fundamental Rights and Freedoms – more commonly referred to as the European Convention of Human Rights (the ‘ECHR’). The European Court of Human Rights sits in Strasbourg, and is responsible for overseeing compliance with the convention.
The ECHR is partially incorporated into UK law through the Human Rights Act 1998 and under the devolved frameworks for Scotland, Northern Ireland and Wales.
The ECHR protects rights such as the right to life (Article 2), the right to freedom from torture (Article 3), the right to private and family life (Article 8) and the right to freedom of expression (Article 10).
The Human Rights Act requires British courts to take into account the judgments of the European Court of Human Rights (section 2) and to interpret domestic legislation in a way that is compatible with the ECHR in so far as it is possible to do so (section 3). Public authorities, including the courts, are under an obligation to comply with the ECHR and a failure to do so is unlawful (section 6).
The UK parliament can pass different types of laws and when an ‘Act’ is created it is called ‘primary legislation’. If a piece of primary legislation cannot be interpreted in a way that is compatible with the convention, British courts can issue a declaration of incompatibility.
This does not in itself make the legislation invalid, as only the UK parliament can make changes to incompatible primary legislation Likewise, judgments of the Strasbourg court are also not always automatically applicable in the domestic legal system and require Parliament to intervene to correct any incompatible primary legislation.
So for example, in the case of Hirst, the Strasbourg court found that a blanket ban on prisoner voting was incompatible with the right to vote (Article 3 Protocol 1), and the Committee of Ministers – the body responsible for overseeing the execution of Strasbourg judgments – continues to urge the UK to comply.
This means that the UK Parliament exercises supreme authority over the enforceability of incompatible primary legislation.
The proposals for the reform or repeal of the Human Rights Act 1998 have not yet been published.
The Secretary of State for Justice Michael Gove has promised that they are imminent – and awaiting the Prime Minister’s approval.
At the moment, what remains unclear is to what extent our relationship with the Council of Europe and the ECHR might change and what the implications of this might be for UK citizens.
The European Union and the EU Charter of Fundamental Rights
The European Union (EU) is a separate legal entity to the Council of Europe and emerged following years of negotiation after WWII, through various treaties in areas of common interest such as coal and steel.
The European Communities Act 1972 passed by the UK parliament ensures that all rights, powers, liabilities, obligations and restrictions arising out of EU law apply in UK law.
Human rights have formed part of the EU legal order from as early as 1969, and since the Lisbon Treaty came into force in 2009 the EU has taken on a formal constitutional format.
The Court of Justice of the European Union (CJEU) sits in Luxembourg and decides whether the 28 EU member states and the EU institutions are acting in compliance with EU law, including human rights law.
The EU Charter of Fundamental Rights is designed to correspond with the ECHR and the constitutional traditions of its member states.
It protects economic, social, cultural, civil and political rights, and extends protection beyond the ECHR in areas such as social policy.
This broader interpretation of rights reflects the broad base of the EU’s areas of competence and the international human rights framework, and thus the Charter includes rights for the disabled, elderly and children as well as protecting rights relating to employment, housing and health.
However, the EU protection of rights and the way these are enforced is complex. As noted by commentators such as Barnard, this expanded version of rights can be more ‘apparent than real,’ and often market considerations will supersede the rights of individual citizens.
The Charter also makes a distinction between rights and principles without explaining clearly how the court should distinguish between them – meaning the enforceability of some human right provisions is unclear.
This approach is problematic because it means it can be difficult to determine in which direction the court might go in relation to different rights in different contexts.
Marina Wheeler has recently identified concerns about legal certainty in terms of an expanding interpretation of newly defined rights in EU law, which she seems to signify the EU going beyond its agreed mandate.
This has particular significance for the UK as during the drafting process of the Charter the UK and Poland attempted to ‘opt-out’ of an extended version of rights under Protocol 30 – particularly in relation to the wider socio-economic rights contained under the Solidarity Title of the Charter.
The Court of Justice of the EU has said that the UK is not exempt from existing obligations under EU law (see here). However, there is still much confusion as to what types of rights are enforceable under the Charter.
For example, in relation to employment rights the court has fluctuated between enforcement and non-enforcement as explained by Peers.
Lord Goldsmith has indeed suggested that if the Court begins to recognise ‘new rights’ then Protocol 30 could come back into play.
Finally it is important to note that the effect of a breach of EU law has immediate effect on the law of the UK.
So, based on cases like Factortame or Benkharbouche, we can see that British courts can actually overturn a piece of UK legislation if it is deemed to be incompatible with EU law – meaning that the legislation is no longer valid.
This is a stronger remedy than is available under the Human Rights Act where British courts can only issue a declaration of incompatibility.
This means that, unlike on rulings of the ECHR, the UK Parliament does not exercise supreme authority over the domestic application of EU law, including human rights law. EU law supersedes national law.
Rights at the domestic level and potential reform
It is within the power of the UK parliament to withdraw from each of the European systems – although the complexity of how the systems overlap make exit from either or both very complicated.
If we repeal the Human Rights Act 1998 but remain a member of ECHR system there may actually be an increase in cases going to Strasbourg, because the ECHR protects the right to a remedy (Article 13).
If we remove the remedies available under the Human Rights Act then more cases may end up being admitted to the court in Strasbourg.
It is open to the UK to leave the Council of Europe system completely and to repeal the Human Rights Act.
However, the ECHR is considered a fundamental part of EU law and so would continue to apply in relation to EU matters.
The European Union itself is under also an obligation to sign up to the ECHR and will join as a member, just like Russia and the UK. In this sense the two European systems overlap and are intertwined.
The House of Lords EU Justice Sub-Committee is currently holding an inquiry on the impact of repeal of the Human Rights Act 1998 on EU law.
The UK could also withdraw from the European Union and leave behind the rights associated with EU citizenship – such as free movement and the rights contained in the Charter.
As highlighted here, a vote for leaving the EU would trigger the Article 50 procedure for a negotiated exit and the rights derived from citizenship would no doubt form part of the negotiations. The outcome of those negotiations for the moment are of course unclear.
Some rights relating to free movement and residence across the EU would not necessarily be retained.
However, those rights derived from EU law currently enjoyed within the territory of the UK would most likely continue to apply until such times as Parliament would change them.
This would most likely serve as a transitional arrangement that allows for the continuity of laws.
There are some further complications at the devolved level that also require consideration.
As explained here, the devolved constitutional statutes (the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006) each afford the ECHR and EU law constitutional status – meaning the ECHR and EU law are binding on the parliaments, governments, judiciary and public bodies.
The types of remedies available for non-compliance are very strong, meaning non-compatible legislation can be declared unlawful and no longer apply (see here).
In Scotland, the First Minister, Nicola Sturgeon, has already indicated that the Scottish parliament would refuse to consent to any change to the devolved application of the ECHR already protected in the Scotland Act 1998 and has warned that leaving the EU would ‘almost certainly’ lead to a second Scottish independence referendum.
There is also momentum behind an extended version of socio-economic rights protection in Scotland.
There was a clear commitment to this effect by Nicola Sturgeon at an event in December hosted by the Scottish Human Rights Commission and there is a new power being devolved to Scotland which will allow the Scottish Parliament to enforce a socio-economic equality duty in devolved matters.
In Northern Ireland, change to the human rights structure becomes even more problematic as the ECHR plays a foundational role in the peace process.
To remove the ECHR framework would be in direct breach of a legally binding international agreement that the UK entered into with Ireland.
There is also a risk of undermining an already existing Northern Ireland Bill of Rights process emanating from the peace agreement which is yet to be concluded because of a lack of political consensus.
The Northern Ireland Bill of Rights proposals also contain many more rights than are currently protected under the ECHR or EU system (including better protection of economic, social and cultural rights).
In Wales, the Welsh Assembly have already forged ahead with legislation which actually increases the protection of human rights by incorporating a duty to have due regard to the UN Convention on the Rights of the Child.
Each of the devolved regions is on a very different human rights trajectory, all with moves towards stronger enforcement.
Proposed reform may risk further fragmenting an already fragmented UK and could potentially leave those living in England with even less access to rights or remedies compared to other parts of the UK.
On the other hand, a holistic UK approach to human rights reform might help forge stronger links between its constituent parts and could lead to a formal written constitution setting out the rights of all UK citizens.
Whatever reforms or change the UK might face it is of course of the utmost importance that citizens are kept informed.
The UK Government is under a duty to publish a report at least 10 weeks before the referendum containing information about rights and obligations that arise under EU law as a result of the UK’s membership of the EU.
It would be helpful, given the overlap and interplay between the two European systems, to also inform citizens of any proposed changes to membership of the Council of Europe or the way the ECHR applies domestically in order to give UK citizens an overview of the changing human rights landscape and what potential future road map might be introduced.
As Stephen Tierney and I have highlighted elsewhere, constitutional processes such as these should be based on fair, inclusive, participative and informed deliberation.
By Dr Katie Boyle, Senior Lecturer in Law, School of Law and Crucible Centre for Human Rights Research, University of Roehampton. With thanks to Leanne Cochrane ESRC Research Fellow for her research assistance.