6 EU accession to the European Convention
on Human Rights
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10817/10
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| 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)
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| Legal base | Article 6(2) TEU and Protocol (No 8); Article 218(8) TFEU, unanimity; consent
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| Document originated | 27 September 2010
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| Deposited in Parliament | 1 October 2010
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| Department | Ministry of Justice
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| Basis of consideration | Minister's letters of 30 June 2010 and 21 September 2010, and EM of 15 November
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information awaited
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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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