Documents considered by the Committee on 26 January 2011 - European Scrutiny Committee Contents


6   EU accession to the European Convention on Human Rights

(32123)

10817/10

Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR)

Legal baseArticle 6(2) TEU and Protocol (No 8); Article 218(8) TFEU, unanimity; consent
Document originated27 September 2010
Deposited in Parliament1 October 2010
DepartmentMinistry of Justice
Basis of considerationMinister's letters of 30 June 2010 and 21 September 2010, and EM of 15 November
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information awaited

Background

6.1  The European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR) is a European human rights Treaty under which, put simply, States can be held accountable for failure to respect the civil and political rights of their citizens. It was ratified by the UK in 1952, came into force in 1953, and was incorporated into UK law by the 1998 Human Rights Act. Once national judicial remedies have been exhausted, an individual who claims his or her ECHR rights have been infringed can lodge an application before the European Court of Human Rights (ECtHR) in Strasbourg. The ECHR is overseen by the Council of Europe, also based in Strasbourg, and has 47 States Party, including the 27 Member States of the EU.

Legal base and legislative procedure

6.2  The legal base for the EU's accession to the ECHR is Article 6(2) of the Treaty on European Union (TEU), as amended by the Treaty of Lisbon, which now obliges the EU to accede to the ECHR,[28] 1 and Protocol 8 of the ED Treaties. Article 1 of Protocol 8 of the EU Before the Treaty of Lisbon came into force there was no legal basis for the EU's accession. Treaties states that the accession agreement "shall make provision for preserving the specific characteristics of the Union and Union law" in particular with regard to the EU's "possible participation" in the control bodies of the ECHR and to "the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the EU as appropriate". Article 2 of Protocol 8 stipulates that the accession agreement "shall not affect the competences of the Union or the powers of its institutions" and that it shall ensure that nothing affects "the situation of the Member States" in relation to the ECHR, its Protocols, and any derogations or reservations they have made.

6.3   Under Article 218(8) of the Treaty on the Functioning of the European Union (TFEU), the Council must unanimously approve the decision for the EU to conclude the EU accession agreement; this is subject to consent by the European Parliament and approval by Member States in accordance with their respective constitutional requirements. Clause 10(2) of the EU Bill provides that Parliamentary approval is to be given by motion without amendment.

Minister's letter of 30 June

6.4  The Lord Chancellor and Secretary of State for Justice (Kenneth Clarke) wrote to the Committee on 30 June to advise it that the EU had adopted a mandate for its negotiations with the Council of Europe on accession to the European Convention on Human Rights (ECHR), which had been agreed at the Justice and Home Affairs Council on 4 June 2010.

6.5  The Minister went on to explain that the Government supports EU accession to the Convention. In his view, the key benefits are that it will:

  • "close the gap in human rights protection as applicants will, for the first time, be able to bring a complaint before the European Court of Human Rights ("the Strasbourg Court") directly against the EU and its institutions for alleged violations of Convention rights;
  • "enable the EU to defend itself directly before the Strasbourg Court in matters where EU law or actions of the EU have been impugned; and
  • "reduce the risk of divergence and ensure consistency between human rights case law between the Strasbourg and Luxembourg Courts".

6.6  The Minister continued that "the EU will be alone amongst parties to the ECHR in that it is not a state. Clearly, the modalities of accession must reflect this fact. However, there is little precedent from which to work, and it will therefore be legally and technically challenging to come up with an approach that respects the particular characteristics of both the EU and the ECHR".

6.7  In particular, he said:

"it will be necessary to translate concepts that are familiar when applied to states for example, the exhaustion of domestic remedies—to this different context. There may also be challenges relating to cases that are brought against both the EU and one of its member states. We will especially want to ensure that the EU's accession does not have an unanticipated impact on the functioning of the Strasbourg and Luxembourg Courts, and that it is practically possible for applicants to bring proceedings to hold the EU to its obligations under the Convention in the same way as they can the existing member states. We will also be alert to ensure that the UK's interests as a member of the EU or as a party to the Convention are not disadvantaged by the EU's accession".

6.8  The Minister expected negotiations with the Council of Europe to start later in the year. Finally he explained that EU accession will not extend the competence of the EU or affect the position of the Member States positions in relation to the Convention.

Our letter of 8 September

6.9  In our reply to the Minister, we commented that the EU's accession strikes us as, potentially, a very significant development both in its internal legal order (despite Treaty provisions to the contrary): it would amount to submitting the acts of EU institutions to independent external control by the European Court of Human Rights (ECtHR); and in the way in which EU citizens' human rights are protected. We used the word "potentially" because it was difficult on the information before us to know how much the EU's accession to the ECHR would be a symbolic gesture, and how much it would lead to practical changes for UK citizens.

6.10  We noted that the Cabinet Office Guidance recommends that Departments should provide the scrutiny Committees with "details of negotiating mandates as soon as they have been approved" and an "indication should be given as to the parties to the negotiation, the subject matter and any special factors" (paragraph 2.3.5). So we said that, whilst we were grateful for the Minister's explanation of how the Government views the benefits of accession, and of the difficulties that it foresees arising in the negotiations, we would be grateful for further details of the subject matters addressed by the mandate, as per the Cabinet Office Guidance. This would help us to scrutinise this policy.

6.11  In the context of the key benefits which the Government thought would accrue from the EU's accession, we asked the Minister to explain further:

  • "what the current 'gap' is in human rights protection that will be closed by accession;
  • "what you mean by 'directly' when you say 'applicants will, for the first time, be able to bring a complaint before the European Court of Human Rights ("the Strasbourg Court") directly against the EU and its institutions for alleged violations of Convention rights'; and

"how accession will 'reduce the risk of divergence and ensure consistency between human rights case law between the Strasbourg and Luxembourg Courts' when Article 52(3) of the Charter on Fundamental Rights specifically allows for EU human rights law to provide 'more extensive protection' than the ECHR. In the light of this it is difficult to see why you have concluded that a key benefit of accession to the ECHR would be consistency between the two legal domains. On the contrary, there is concern in academic circles that the Charter will lead to legal uncertainty in how human rights are applied in Europe by introducing an additional standard of 'fundamental' right."

6.12  Finally, we noted that the Court of Justice in Luxembourg will be bound by the ECtHR's interpretation of EU internal rules which engage human rights after the EU accedes to the ECHR. So we asked the Minister for his views on how the EU's autonomous legal order would be preserved, particularly in the light of the Court of Justice's Opinions 1/91 and 1/00.

Minister's letter of 21 September

6.13   In his reply, the Minister said the papers prepared for the first meeting between the Council of Europe and the EU, which took place in June, had been released. They set out five broad categories of issues for discussion:

"(a) issues around the scope of the EU's accession to the ECHR, including accession to additional Protocols and ancillary agreements; and the status of reservations, declarations and derogations;

"(b) technical adaptations to the provisions of the ECHR and other instruments, particularly the clarification of the application to the ED of terms in the Convention that were chosen in the context of its parties being sovereign states;

"(c) the procedure before the European Court of Human Rights (ECtHR), including the participation of the EU in proceedings before the Court; the introduction of a 'co-respondent' mechanism for applications that engage the responsibilities of both the EU and its Member States; the prior involvement of the European Court of Justice in determining the compatibility of an EU act with the ECHR; and further related technical amendments;

"(d) the institutional and financial issues, including the election and participation of a judge elected in respect of the EU in the ECtHR; the participation of the European Parliament in the election of judges by the Parliamentary Assembly of the Council of Europe; the participation of the EU in the Committee of Ministers of the Council of Europe when exercising functions under the ECHR; and the participation of the EU in paying the costs of the Convention system; and

"(e) matters relating to the accession instrument itself, including how it will be ratified and come into force."

6.14  The Minister went on to answer the questions we had raised in or letter of 8 September:

WHAT IS THE CURRENT "GAP" IN HUMAN RIGHTS PROTECTION THAT WILL BE CLOSED BY ACCESSION?

"Broadly speaking, the reference to a 'gap' denotes the fact that, currently, the EU is not directly accountable to the ECtHR. There are two respects in which the EU's accession to the ECHR will address this issue.

"First, at present, individuals who consider that the actions of the EU have breached their fundamental rights cannot bring proceedings against the EU in the European Court of Human Rights. Following the EU's accession to the ECHR, they will be able to do so. This will in itself be a significant step, because the EU will be directly answerable to the Strasbourg Court for its own actions.

"Second, the ED's accession to the ECHR will resolve an uncertainty about the extent to which Member States are answerable to the Strasbourg Court for the actions of the EU.

"As the law stands, when individuals consider that the actions of the EU have breached their fundamental rights, they may in some circumstances bring a claim in the Strasbourg Court against one or more Member States. The ECtHR has held that when EU law results in a breach of the ECHR, the Member States can be held responsible for that breach, because they enabled the EU to act in the way that it did. For example, in Matthews v UK (1999) 28 EHRR 361, the UK was held responsible for a violation arising from the EU's primary legislation on the grounds that the UK had freely entered into the relevant EU obligations.

"However, it is open to question whether the Member States can be held responsible in the Strasbourg Court for violations resulting from the actions of individual EU institutions, such as the Commission. The point arose in Senator Lines v 15 States (2004) 39 EHRR SE3, but it was not resolved because the Court found that the claim was inadmissible on other grounds.

"The EU's accession to the ECHR will resolve this uncertainty. Once the EU is a party to the ECHR, there will be no doubt that individuals will be able to bring proceedings against the EU in the Strasbourg Court on the grounds that the acts of the EU institutions have breached their Convention rights."

WHAT DO YOU MEAN BY "DIRECTLY" WHEN YOU SAY THAT "APPLICANTS WILL, FOR THE FIRST TIME, BE ABLE TO BRING A COMPLAINT BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS ('THE STRASBOURG COURT') DIRECTLY AGAINST THE EU AND ITS INSTITUTIONS FOR ALLEGED VIOLATIONS OF CONVENTION RIGHTS"?

"At present, as described above, the only way for individuals to argue in the Strasbourg Court that the EU has breached their ECHR rights is for them to bring proceedings against one or more Member States. Once the EU has acceded to the ECHR, it will be possible for the EU itself to be the respondent in proceedings in the Strasbourg Court, and to defend claims in its own name."

HOW WILL ACCESSION "REDUCE THE RISK OF DIVERGENCE AND ENSURE CONSISTENCY BETWEEN HUMAN RIGHTS CASE LAW BETWEEN THE STRASBOURG AND LUXEMBOURG COURT" WHEN ARTICLE 52(3) OF THE CHARTER ON FUNDAMENTAL RIGHTS SPECIFICALLY ALLOWS FOR EU HUMAN RIGHTS LAW TO PROVIDE "MORE EXTENSIVE PROTECTION" THAN THE ECHR?

"The EU will be bound by the Strasbourg Court's judgments in cases in which it is a respondent. Furthermore, like other contracting parties to the ECHR, the EU will need to have regard to the Strasbourg jurisprudence (reflecting the ECT's own longstanding practice, in cases such as Case C-465/07 Elgafaji [2009] ECR 1-921, paragraph 28).

"Article 52(3) of the Charter confirms that the rights in the ECHR have precisely the same meaning in EU law. It provides that insofar as Charter rights correspond to rights in the ECHR, 'the meaning and scope of those rights shall be the same as those laid down by the said Convention'. The explanation of Article 52(3), to which Article 6(1) TEU requires courts to have regard, makes it clear that the purpose of this provision is 'to ensure the necessary consistency between the Charter and the ECHR by establishing the rule that, in so far as the rights in the present Charter also correspond to rights guaranteed by the ECHR, the meaning and scope of those Draft for the Committee's Report rights, including authorised limitations, are the same as those laid down by the ECHR.' The explanation then lists those provisions in the Charter that correspond to provisions in the ECHR, as well as those where the right under EU law goes further than the right under the Convention. There is therefore no doubt about which rights in the Charter correspond to rights in the ECHR, and it is clear that to the extent that they correspond, they must be interpreted in the same way.

"Furthermore, once the EU has acceded to the ECHR, individuals who argue unsuccessfully in the ECJ that the EU has breached their Convention rights will be able to make the same arguments before the Strasbourg Court, whose decision will be binding on the EU. Through this mechanism, the Strasbourg Court will have the final say about whether the EU has interpreted Convention rights correctly, which will ensure that the Convention is applied consistently."

HOW WILL THE EU'S AUTONOMOUS LEGAL ORDER BE PRESERVED, PARTICULARLY IN THE LIGHT OF THE COURT OF JUSTICE'S OPINIONS 1/91 AND 1/00?

"In Opinion 1/91 [1991] ECR 1-6079 and Opinion 1/00 [2002] ECR 1-3493, the ECJ held that the EU had no competence to enter into international agreements that would permit a court other than the European Union's Court of Justice (ECJ) to make binding determinations about the content or validity of EU law.

"There is no reason to suppose that the agreement by which the EU accedes to the ECHR will fall foul of this principle. Article 6(2) TEU expressly provides that the EU 'shall accede' to the ECHR. It follows that there can be no suggestion that the EU's accession is incompatible with the Treaties. Indeed, as mentioned above, the ECJ has always considered the case law of the Strasbourg Court when interpreting the scope of Convention rights as they apply in the EU's own legal order.

"Furthermore, the Treaties expressly require that the accession agreement should be drafted in such a way that the autonomy of EU law is not undermined, and the EU is therefore under a legal obligation to ensure that the accession agreement respects these constraints. In particular, Article 6(2) TEU provides that accession 'shall not affect the Union's competences as defined in the Treaties'; Article 1 of Protocol No 8 provides that the accession agreement must 'make provision for preserving the specific characteristics of the Union and Union law'; Article 2 of the Protocol provides that accession 'shall not affect the competences of the Union or the powers of its institutions'; and Article 3 of the Protocol provides that the accession agreement must not affect Article 344 TFEU, which requires that disputes concerning the interpretation or application of the EU Treaties must be settled only in accordance with the provisions of the Treaties."

Our letter of 27 October

6.15  In our reply to the Minister we thanked him for replying to our questions so fully. We said we would like to be able to report the contents of both of his letters, and our replies, to the House. But in order to do so an EU document would need to be deposited with the House. Whilst aware that the negotiating mandate was confidential and so non-depositable, we asked him to consider whether a related EU document could be deposited instead.

The document: a partially declassified version of the mandate

6.16  In response, the Minister deposited a partly declassified version of Council Decision authorising the negotiation of the accession agreement. Article 1 authorises the opening of negotiations. Article 2 nominates the Commission as the "Union negotiator". Article 3 provides that the Commission should conduct the negotiations in consultation with the Working Party on Fundamental Rights, Citizens Rights and Free Movement of Persons, a special committee appointed by the Council in accordance with Article 218 (4) TFEU. The Commission should report regularly to this committee on the progress of the negotiations and shall forward all negotiating documents to this committee. Article 4 provides that the negotiating mandates should be carried out in accordance with the negotiating directives set out in the annex. Article 5 is "not declassified"; nor are the negotiating mandates in the annex.

The Minister's Explanatory Memorandum of 15 November

6.17  The Minister says that the Government does not expect the EU's accession to the ECHR to have any direct impact on UK law: as Article 6(3) of the Treaty on European Union confirms, the fundamental rights guaranteed by the ECHR already constitute general principles of EU law. It is possible, however, that an adverse judgment against the EU by the European Court of Human Rights may require the EU to amend its legislation in order to protect individuals' fundamental rights in a way that will have consequential implications for UK law.

6.18  The process of Accession has been considered against the commitments in the Government's 'Programme for Government'. Accession by the EU to the ECHR will not transfer any powers to the EU. Protocol 8 to clearly states that accession "shall not affect the competences of the Union or the powers of its institutions". Protocol 8 further states that the EU's s accession will not impact on the UK's rights or obligations under the ECHR. Accession also reflects the Coalition Government's commitments on civil liberties, bringing the actions of the European Union directly within the jurisdiction of the European Court of Human Rights.

6.19  The Government supports accession by the EU to the ECHR for the following reasons. Accession will close the gap in human rights protection as applicants will, for the first time, be able to bring a complaint before the European Court of Human Rights directly against the EU and its institutions for alleged violations of ECHR rights. It will enable the EU to defend itself directly before the European Court of Human Rights in matters where EU law or actions of the EU have been impugned. Further it will reduce the risk of divergence and ensure consistency between human rights case law between the European Court of Human Rights and EU's Court of Justice (ECJ) in Luxembourg; the EU will be bound by the European Court of Human Rights' judgments in cases in which it is a respondent and, like other contracting parties to the ECHR, the EU will need to have regard to the Strasbourg jurisprudence. Additionally, EU accession will mean that individuals who argue unsuccessfully in the ECJ that the EU has breached their fundamental rights can, subject to the usual admissibility requirements, complain to the European Court of Human Rights that the EU has violated one or more Convention rights. The European Court of Human Rights' judgment will be binding on the EU as a respondent to the proceedings.

Conclusion

6.20  We thank the Minister for his extensive replies to our questions about the EU's accession to the European Convention on Human Rights. Given the legal and political importance of the topic, we set out these questions and replies in this Report for wider readership.

6.21  We note that paragraph 2.3.5 of the guidance for Parliamentary scrutiny of EU documents states that "Departments should ensure that the Committees are kept informed as much as possible about the scope and development of negotiations prior to conclusion of an agreement". We look forward to being kept so informed.

6.22  Meanwhile, the document remains under scrutiny.



28   Before the Treaty of Lisbon came into force there was no legal basis for the EU's accession. Back


 
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