Chapter 2: The legal landscape explained
The European Convention on Human Rights and the EU Charter—an overview
11.The EU Charter is often confused with the European Convention on Human Rights (ECHR), as the Court of Justice of the EU in Luxembourg (the CJEU) is with the European Court of Human Rights in Strasbourg (the ECtHR). While both contain overlapping human rights provisions, they operate within separate legal frameworks.
12.The ECHR is an instrument of the Council of Europe in Strasbourg, and is ultimately interpreted by the ECtHR. It is given effect in national law by the Human Rights Act 1998 (HRA).
13.The Charter is an instrument of the EU. It is part of EU law and subject to the ultimate interpretation of the CJEU. EU law is given effect in national law through the European Communities Act 1972.
14.While human rights litigation in the UK most often comes within the framework of the ECHR, and therefore the HRA, the EU in 2009 codified a wide number of human rights, which it calls fundamental rights, in the form of the EU Charter.
15.A table at the end of this Chapter lists the principal differences between the ECHR and the EU Charter.
The ECHR
16.Signed on 4 November 1950 by 12 Member States of the Council of Europe,5 the ECHR is an international treaty designed to protect the human rights of citizens from violation by their governments. It is a requirement of Article 1 of the ECHR that contracting States secure enjoyment of these rights. Drawing inspiration from the United Nations’ Universal Declaration of Human Rights, the ECHR covers 12 civil and political rights including the right to life; the prohibition of torture; the right to liberty and security; the right to a fair trial; the right to respect for private and family life; freedom of thought, conscience, and religion; and freedom of expression. Article 14 protects an individual’s ability to enjoy these rights without discrimination. Article 15 permits derogations in times of war or other public emergencies threatening the life of the nation.
17.UK representatives played a major role in the early development of the ECHR. It was drafted under the supervision of Sir David Maxwell Fyfe, who was a member of the Council of Europe’s Parliamentary Assembly and rapporteur on the ECHR’s drafting Committee. The UK was the first European nation to ratify the Convention in 1951 and the British jurist Lord McNair was the first President of the ECtHR.
18.The ECHR was drafted in response to the failure of democratic politics in Europe after the First World War, and to the widespread crimes against European citizens committed during the Second World War. Aidan O’Neill QC characterised it in this way:
“War against its own citizens is what Strasbourg is for, it is what the European Court of Human Rights is for. It is to say that the State cannot be seen to be all-powerful, that it is called to account by universal standards, and that it cannot use its powers—its monopoly on violence—its ability to change the law, to oppress its own people, to wage war on its own people.”6
19.The ECHR has been supplemented by Protocols containing further civil and political rights, such as the right to free elections.
20.Unlike the CJEU, where the right of access by individuals is limited, the ECtHR is a court of individual petition, meaning citizens of contracting States can seek a ruling from the ECtHR for violation of an ECHR right by their government (or its executive agencies). They must, however, have exhausted all national remedies before applying to the ECtHR. This means they must have appealed their cases to the highest level court in their own State.
21.The contracting States of the ECHR “undertake to abide by final judgment of the Court in any case to which they are parties”.7 Thus the ECtHR’s judgments are legally binding. Supervision of the execution of judgments is undertaken by the Council of Europe’s main decision-taking body, the Committee of Ministers, made up of representatives of each contracting State.8 Unlike judgments of the CJEU, however, ECtHR judgments apply only to the Member State concerned. While the finding of a violation by a contracting State is significant of itself, and can lead to compensation for the victim, compliance with ECtHR judgments is not enforced by a punitive sanctions regime, as we report in Chapter 5. This is in contrast to the enforcement of CJEU judgments.
The Human Rights Act 1998
22.The HRA came into force in the UK in October 2000. As a consequence of its enactment, UK citizens can rely on ECHR rights, and have them determined, in national courts, rather than having to go to the ECtHR in Strasbourg, as was the case before the HRA. (They can still go to the ECtHR if the highest level court in the UK rules against them, in other words when they have exhausted their domestic remedies.)
23.All UK public bodies (such as courts, the police service, local government, hospitals, publicly funded schools) and other bodies carrying out public functions have to comply with ECHR rights.
24.UK courts are required under the HRA to “take into account” the case law of the ECtHR when deciding cases in which ECHR rights are engaged. The obligation to do so only extends “so far as” the court deems that the ECtHR case law “is relevant” to the particular proceedings before it.9 Courts are not obliged to apply the ECtHR’s case law rigidly to the individual case.10
25.If, however, the court is satisfied that a provision of UK legislation cannot be interpreted in a way that is compatible with the ECHR, it can make a declaration to that effect—a declaration of incompatibility. Only the higher courts can make a declaration of incompatibility. It is then for the Government to decide whether to amend the legislative provision in question. A declaration of incompatibility does not affect the validity or continuing operation of the provision in question unless and until Parliament amends it.
The EU Charter
26.The EU Charter was originally conceived as a political declaration, before being given the same legal status as the EU Treaties by the Treaty of Lisbon. It came into force in December 2009.11 It consolidates in a single charter fundamental rights that already existed under EU law. These rights derived from the EU Treaties, EU secondary legislation such as Directives and Regulations, and the case law of the CJEU. Some mirrored civil and political rights found in the ECHR;12 others went beyond the ECHR, covering economic and social rights. The EU Charter distinguishes between rights and “principles”,13 however, the latter not being directly enforceable in national courts unless implemented by further legislation. The majority of economic and social rights are defined as principles, and so are not directly enforceable.14
27.The preamble to the EU Charter states that it does not create any new rights. Former Attorney General, the Rt Hon Lord Goldsmith QC, who represented the UK in the EU Charter negotiations, emphasised the importance of this point: “I believed, as I think did officials, that we had achieved what we set out to do, which was: no new rights, no justiciable rights, not extending the competence of the EU.”15
28.The EU Charter has two applications.16 First, it applies to all actions of the EU institutions and its agencies. Accordingly, EU legislation and executive action that engages rights protected by the EU Charter must be compatible with it, and EU institutions and agencies can be held to account by the CJEU for legislation or decisions that are incompatible with it. Secondly, it applies to Member States when they “implement” EU law, the rationale being that Member States should uphold the EU’s system of fundamental rights protection when they are implementing EU law. There has been much debate, and some fear, about the extent to which this second limb of the EU Charter’s application can be used to extend the scope of EU law over national law.
29.The CJEU is not a court of individual petition: the right of access by individuals is limited, and the great majority of the cases it hears are either references for preliminary rulings from national courts, or cases brought by the EU institutions or Member States. The decisions of the CJEU are equally legally binding in all Member States. If a Member State does not comply with a judgment of the CJEU, the Commission can bring ‘infringement’ proceedings against it, which are determined by the CJEU. Findings of non-compliance lead to punitive fines.
30.Two further long-established principles of EU law are relevant to this report. The first is the principle of the ‘supremacy’ of EU law. Supremacy of EU law means, in essence, that where EU law and national law conflict, EU law prevails; in such cases, national courts must follow EU law and ‘disapply’ national law. The second is the principle of direct effect. If a provision of EU law has direct effect, it can be relied upon by an individual in a national court directly, without the need for national implementing legislation.
The European Communities Act 1972
31.The European Communities Act gives effect to EU law in national law. It is the Act of Parliament that defines the UK’s legal relationship with the EU. It provides for the principles of supremacy and direct effect and is the basis on which a national judge can disapply legislation which is inconsistent with EU law. It is also the basis on which much national secondary legislation implementing EU law, such as statutory instruments, is made.
Table 1: ECHR and EU Charter: principal differences
ECHR |
EU Charter |
|
Applies to the 47 Council of Europe States, including the 28 EU Member States. |
Applies to the EU’s institutions and agencies, and its 28 Member States, but only when they are implementing EU law. |
|
Covers fundamental civil and political rights, including the right to life, the right to a fair hearing, the right to respect for private and family life, freedom of expression, freedom of thought, conscience and religion, and the protection of property. |
Covers some of the civil and political rights in the ECHR, which must be given the same meaning. It also covers economic and social rights, such as the right to fair and just working conditions, the right to preventive healthcare, the right to good administration and the right to access to documents. |
|
Incorporated into national law through the Human Rights Act 1998. |
Incorporated into national law through the European Communities Act 1972. |
|
All the rights in the ECHR can be enforced against the Government by individuals in national courts via the Human Rights Act 1998. |
Those rights in the EU Charter defined as ‘principles’, which includes many economic and social rights, are not directly enforceable by individuals in national courts. |
|
The ECHR is overseen by the European Court of Human Rights in Strasbourg. |
The EU Charter is overseen by the Court of Justice of the European Union in Luxembourg. |
|
The European Court of Human Rights is a human rights court; individuals have the right to bring cases to it once they have exhausted national remedies. |
The Court of Justice is responsible for interpreting all EU law, not just the EU Charter. Individuals have limited access to it. It is not, as such, a human rights court. |
|
European Court of Human Rights judgments are legally binding on the State concerned, but the enforcement mechanisms are less powerful. |
Court of Justice judgments are legally binding on all 28 EU Member States, and carry more powerful enforcement mechanisms. |
|
National enforcement mechanisms are weaker. National law is interpreted by courts in an ECHR-compliant way where possible. Where a court finds that national law cannot be interpreted compatibly with the ECHR, under the Human Rights Act it can recommend that the law be changed. |
Where a court finds that national legislation cannot be interpreted compatibly with the EU Charter, under the European Communities Act it can disapply the law itself. |
|
Damages in national courts for violations of the ECHR are not common. |
Damages in national courts for violations of the EU Charter are more common. |
5 Belgium, Denmark, France, Germany, Iceland, Ireland, Italy, Luxembourg, Netherlands, Norway, Turkey and the United Kingdom.
7 ECHR, Article 46(1)
8 ECHR, Article 46(2)
9 Human Rights Act 1998 section 2(1)(a)
10 In the case of Ullah v Special Adjudicator [2004] 2 AC 323, Lord Bingham stated that: “The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.” In the recent case of Pinnock v Manchester City Council [2010] 3 WLR 1441 Lord Neuberger said: “This court is not bound to follow every decision of the European court. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law … Of course, we should usually follow a clear and constant line of decisions by the European court: R (Ullah). But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber”.
11 There has been some confusion about whether the EU Charter applies in the UK, because of a Protocol on the EU Charter agreed by the UK and Poland. The CJEU has confirmed that it does. In joined cases C-411/10 and 493/10 (NS and ME), the CJEU confirmed that “Protocol (No 30) does not call into question the applicability of the Charter in the United Kingdom or in Poland, a position which is confirmed by the recitals in the preamble to that protocol” (para 119). See also Q 45 (Lord Goldsmith) on the purpose of Protocol 30.
12 Article 52(3) of the EU Charter states that EU Charter rights which correspond to ECHR rights must be given the same meaning as under the ECHR.
13 EU Charter, Article 52(5)
14 See para 55 of this report.
16 EU Charter, Article 51