Human rights and the EU
3rd May 2016
What would be the effect on human rights if the UK leaves the EU?
Some things won’t change—and some things will.
We would still be signed up to the European Convention on Human Rights
As a result, people who believe that the UK government or the UK’s laws are responsible for a breach of any of the rights listed in the convention can challenge them at the European Court of Human Rights in Strasbourg.
By signing the treaty, the government agreed to abide by any judgment delivered by the Strasbourg court that goes against the UK. To comply, the government might have to ask parliament to change the law.
It’s the job of the Council of Europe to supervise the way in which governments give effect to the court’s rulings.
The Council of Europe is entirely separate from the European Union, which has 28 members.
It follows that a country can be a member of the Council of Europe and not of the EU. And while ministers say that they “rule nothing out”, it is not the policy of the UK government to leave the Council of Europe or pull out of the human rights convention.
So if the UK leaves the EU it will still be possible for people to complain to the human rights court and it will still be the responsibility of the UK to abide by the court’s judgments.
The Human Rights Act is also separate from the EU
From 1966 to 2000, the only way in which an individual could enforce the European Convention on Human Rights against the government was to complain to the court in Strasbourg.
The act also required courts in the UK to take into account decisions by the human rights court in Strasbourg.
That won’t change if the UK leaves the EU. There will be no obligation on parliament to change the Human Rights Act—although that’s something that the government is separately committed to.
The EU court’s role in human rights
So far, we have been talking about the Council of Europe’s human rights court in Strasbourg.
But the European Union has its own, entirely separate, court system in Luxembourg. Its formal title is the Court of Justice of the European Union (CJEU) but it’s also known as European court of justice.
The Court of Justice has a judge from each EU member country. As the top court of the EU, it can give judgments about the legality of EU action and the compatibility of national action with EU law. There is also another EU court, the General Court, which has specialist responsibilities.
The main job of the CJEU is to interpret EU law and make sure it’s applied in the same way in all EU countries. Another important role is to decide legal disputes between EU institutions and member governments.
The charter is consistent with the human rights convention. Where the rights in the charter “correspond to” the rights in the human rights convention, their meaning is the same.
But EU law may give greater protection than the Council of Europe convention. The charter also includes additional rights that are not in the convention, relating to areas such as social policy, data protection and bioethics.
The charter is addressed to the EU institutions “with due regard for the principle of subsidiarity”.
And the charter’s provisions are also binding on EU states, but only when those states are implementing EU law—which means giving effect to a provision of EU law.
Wasn’t the UK supposed to get an opt-out from EU human rights laws?
Unlike human rights law, EU law is directly binding on the courts of the United Kingdom. It takes priority over other laws.
So when the charter was given effect by parliament, some people in the UK were concerned that its provisions could be used to overturn existing laws.
To address these concerns, the government negotiated an additional section to the Treaty of Lisbon, known as Protocol 30.
This says, in part: “The charter does not extend the ability of the CJEU, or any court or tribunal of… the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of… the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.”
The key word here is “extend”. Protocol 30 makes it clear that the charter does not give the courts new powers. But it does not limit their existing powers.
National courts and EU courts have long had the power to assess EU-related national laws against existing EU fundamental rights. For this reason, leading lawyers suggested in March 2011 that protocol 30 might have little practical effect.
It was certainly not the “opt-out” that some people had hoped for.
That view was confirmed by a ruling from the CJEU in December 2011.
Holding that EU states could not return asylum-seekers to countries where they might face inhuman treatment, the court said that Protocol 30 did not exempt a UK court from compliance with the charter. This was something the government had already accepted.
The EU human rights charter has been increasingly used by the courts
Last year, the Court of Appeal 'disapplied' part of a statute giving immunity to foreign embassies and said the charter would allow former embassy staff to sue for unfair dismissal under EU law. Nobody even mentioned Protocol 30.
If the UK were to leave the EU, parliament would be expected to repeal the legislation giving effect to the EU treaties.
As a result, claimants would no longer be able to enforce their EU law rights, including the charter, in the courts of the UK. But they would still be able to rely on the other human rights convention in the ways discussed earlier.
The EU courts are making increasing use of the charter. It was mentioned in 43 judgments in 2011 and 210 judgments in 2014.
If a country is thought to have violated charter rights when implementing EU law, the European Commission can launch infringement proceedings against the state and, ultimately, take that state to the CJEU.
During 2014, the European Commission brought 11 cases to the CJEU alleging that member states had infringed the charter. Five of those cases relate to asylum and migration.
When a country is found to be at fault in infringement proceedings, it must put things right at once or risk a second case being brought. That may result in a fine.
If the UK were to leave the EU, it would no longer face proceedings for infringing the EU charter. But it would still be bound by its obligations under the non-EU human rights convention.
Leaving the human rights convention without leaving the EU
The Home Secretary has suggested that the UK should stay in the EU but drop out of the separate Council of Europe human rights convention.
That is the case in practice for countries that want to join the EU as new members, but there isn’t a hard and fast rule for existing members.
Legal opinion is divided about whether any of the countries currently in the EU could pull out of the convention and remain in the EU.