The UK, the EU and a British Bill of Rights Contents

Chapter 7: The impact of a British Bill of Rights on European cooperation and the UK’s international standing

124.The Secretary of State confirmed in his evidence that in introducing a British Bill of Rights the Government had no intention of derogating “absolutely” from any of the rights contained in the ECHR.132 This appeared to bear out the Prime Minister’s statement after the general election, already referred to, that any Bill of Rights would be “compatible with our membership of the Council of Europe”. The Secretary of State added, however, that while the Government did not intend to say that any individual right within the Convention no longer applied in the UK, “the Prime Minister has ruled nothing out”, and that “where rights are subject to potential qualification, we may emphasise the importance of one right over another.”133 The extent to which a British Bill of Rights may depart from the level of protection provided for under the ECHR and the HRA is, therefore, uncertain.

125.We sought views from a number of our witnesses on the impact of repealing the HRA, and/or withdrawing from the ECHR, on the UK’s international reputation, on the operation of the ECHR, on the UK’s membership of the EU, and on the UK’s future participation in EU Justice and Home Affairs cooperation. While these considerations may be hypothetical—and we take comfort from the Secretary of State’s apparent confirmation that the Government intends to continue to abide by the ECHR—they nevertheless provide essential context for the narrower policy proposals currently being developed.

Impact on the ECHR and the UK’s international standing

126.Lord Goldsmith warned of the “terrible message” that the UK’s moving away from the standards in the ECHR, by repealing the HRA, would send to other countries. He argued that, were the UK to have its own human rights arrangements, it would give countries “who … follow their obligations under the European Convention grudgingly and sparingly encouragement and comfort to continue”.134 Mr Grieve agreed, telling us that there were “certainly some people around who … have said, ‘Well, the way the Convention works, you just ignore the judgments that you don’t like’, just as we have been doing with prisoner voting”. This, however, had the “consequence of ruthlessly undermining the effectiveness of the Convention in so far as it applies to other places around Eastern Europe with poor human rights records”.135 Ultimately, this would make the ECHR “unworkable, because the United Kingdom has always been seen as one of the principal architects and supporters of Convention principles, which also means observing … and implementing judgments”.136

127.Mr Biagi was concerned that any reduction in the UK’s international standing would, in turn, have a negative impact on the reputation of the Scottish Government. He wanted to see the UK remain within the ECHR in order “to avoid sending … a message, which would be heard in capitals around the world that have scant regard for human rights”.137

128.The Secretary of State did not believe that a departure from the rights contained in the ECHR would undermine the UK’s international reputation. He recognised that ECHR rights were “undoubtedly admirable and set a very high standard, and one would wish to see as many states as possible cleave as closely as possible, consistent with their own traditions” to the Convention’s values. But, he added that “I do not think that it is absolutely necessary for any country to be viewed as a human rights exemplar to be a signatory” to the ECHR.138 He thought that the international consequences of changes to domestic human rights legislation could “sometimes be overstated”:

“I do not think that Vladimir Putin’s hand is stayed by the fact that Britain does anything in particular with respect to its domestic legislation. It is a good thing that occasionally the Strasbourg court and the Council of Europe can exercise some countervailing pressure against Russia, but countries like Russia and leaders like Putin operate above and beyond the law, and that is a brute fact of international relations.”139


129.We heard concerns that a British Bill of Rights that reduced the UK’s explicit commitment to the ECHR would undermine the UK’s standing within the Council of Europe and more widely. It could also put the effective operation of the European Convention on Human Rights, which requires all contracting States to respect its obligations, in jeopardy. The evidence of two former Attorneys General to this effect was compelling.

130.These concerns are heightened by the lack of clarity from the Government about whether the UK will remain a contracting State of the European Convention on Human Rights. We call on the Government to state explicitly whether or not it intends that the UK should remain a signatory to the ECHR.

Impact on the UK’s Membership of the EU

131.Drawing on the Copenhagen criteria for EU membership140 (agreed in 1993 and applied since then to all states seeking to join the EU) Mr Grieve stated: “it is quite clear that you cannot now become a candidate member and be admitted to the EU if you are not adherent to the European Convention”. But, he added, “there is nothing in the Treaties that says that you have to be”.141 Professor Peers recognised that once a country has joined the EU “there is no formal requirement on each member state to be a party to the ECHR”.142 Professor Dougan agreed.143

132.Professor Peers did argue, however, that there was an “assumption” that all Member States were parties to the ECHR, particularly as the Convention “is referred to in the Charter and in the general principles of EU law.”144 Professor Anthony made a similar point, adding that while the UK remained a member of the EU, “the Convention would still permeate UK law through the medium of the European Communities Act and Charter, albeit with narrower reach”.145 Mr O’Neill QC pointed out that the Lisbon Treaty was “replete” with references to the EU’s fundamental values, which were “inspired specifically” by the ECHR.146

133.Professor Anthony argued that repeal of the HRA and attempts by the UK to “roll back from the Convention” would “upset the equilibrium within the European Union”.147 Full withdrawal by the UK from the ECHR could, in his view, “give rise to questions about [the UK’s] EU membership”.148 The Welsh Government told us that “Even if a workable solution could be found to enable the UK to leave the ECHR and yet remain in the EU, this would no doubt be a complicating factor to the UK’s relationship with the EU Institutions and other EU Member States”.149

134.Focusing on the practicalities of EU cooperation, Professor Peers said:

“If the UK started to expel EU citizens and their family members to other member states for crimes that were not very serious or that did not justify removal under the EU’s citizens’ rights Directive … that would be a breach simultaneously of EU law and of the ECHR.”150

Breaches of this kind, even those that “did not fall within the scope of EU law” could give rise to “misgivings on the part of other member states as to whether they ought to co-operate with [the UK] more generally”.151

135.Mr Grieve,152 Professor Dougan153 and Professor McCrudden all warned that if the UK withdrew entirely from the ECHR, this might lead to recourse by the EU to the provisions in the Treaty.154 “under which … a Member State’s actions are such as to call into serious question the Member State’s commitment to human rights and the rule of law”.155

136.Martin Howe QC disagreed, arguing that the UK Government’s stance was based on a principled disagreement with the interpretation of the European Convention by the ECtHR. It was “a completely different political scenario from either a Greek colonels situation or the situation that arose in Austria” in 1999–2000.156 He concluded that “there is excessive alarmism on this point”.157

137.The Secretary of State did not appear concerned by this issue at all. He told us that his fellow European Justice Ministers had not raised any concerns with him. In his experience, the other EU Member States held “views about whether or not Britain should remain in the European Union and the consequences of that, but they do not … express strong views” about the UK’s adherence to human rights principles.158


138.We recognise that there is no formal legal obligation on an EU Member State to remain a party to the European Convention on Human Rights, but our evidence clearly suggests that any attempts by the UK to depart from its standards, or to withdraw from it entirely, would severely strain the UK’s relations and cooperation with other EU States.

Impact on the UK’s participation in Justice and Home Affairs cooperation

139.Built in part on the principles common to all Member States’ legal systems, which include the ECHR, mutual recognition is based on the principle of mutual respect between Member States’ legal systems, and has been developed as an alternative to harmonisation through EU legislation. Mutual recognition obliges the criminal justice systems of the Members States to recognise each other’s judgments and decisions, with limited grounds for refusal.

Box 2: EU Justice and Home Affairs Cooperation

In 1999, the European Council undertook to develop the EU as “an area of freedom, security and justice”. The Tampere Programme159, the European Council’s (then) five year legislative programme for Justice and Home Affairs, endorsed “the principle of mutual recognition which … should become the cornerstone of judicial co-operation in … criminal matters within the Union”. Subsequent Justice and Home Affairs five-year plans have maintained this focus.160

The events of 11 September 2001 provided renewed impetus to the Member States’ efforts to pass Justice and Home Affairs legislation based on the principle of mutual recognition. Since then, the EU has introduced a number of mutual recognition legal instruments, of which, the European Arrest Warrant is the most well-known.161

140.Mr O’Neill QC said the EU “is not just a trade agreement … we have an area of freedom and justice and co-operation. That requires … a common standard, a common approach to fundamental rights”.162 He warned, with regard to the European Arrest Warrant (EAW) specifically, that any attempts by the Government to move away from these common standards would throw a “spanner” into the UK’s participation.163 Mr Grieve MP warned that “if the consequence of our pulling out of the ECHR or being non-compliant is that we are departing from the norms, certainly, of the western European countries with which we co-operate most closely, it would make this particular field more difficult to operate”.164

141.Mr Biagi said that any departure by the UK from ECHR standards “will have international consequences” for the UK’s reputation and esteem. He continued, “if you step away from the principles, other Governments, other countries, are going to consider the relationships between the jurisdictions”. He suggested that “in the end the question will probably be resolved by the other jurisdictions rather than by the UK itself”.165 Professor Peers agreed, arguing that “for a while at least” the UK’s participation in JHA co-operation would be complicated by legal challenges. At the practical level, every time “we sought to enforce a UK criminal law decision … in the national courts of another member state, anyone with the remotest argument … would go into the courts there and say, ‘You can’t enforce that judgment against me’”.166

142.Professor Dougan doubted that repeal of the HRA on its own would automatically lead to the suspension of the UK’s participation in mutual recognition based EU JHA co-operation: “the mere fact that [Member States] breach fundamental rights every now and again or in individual disputes does not exempt anyone from mutual recognition obligations”.167 If the changes introduced by the British Bill of Rights turned out to be “relatively minor … and the UK continues fully to respect EU fundamental rights within the scope of application of the treaties”, the CJEU would require “substantial grounds to believe that there are systemic problems … that are leading to a systematic infringement of fundamental rights” in the UK. But in the event that there were such a systematic infringement, then Professor Dougan anticipated the suspension of mutual recognition between the UK and the other Member States.168

143.Martin Howe QC, in contrast, argued that the “presumption that standards of justice in all Member States are the same” was “frankly … a diplomatic fantasy, not a reality”.169 The Secretary of State, while confirming that he was “keen on the principle of mutual co-operation”, also premised his answer on the assumption that the UK Government would, in future, be seeking to introduce higher, not lower, rights protection. He argued that “it is possible that this Government or a future Government might wish to institute protection for citizens or residents in the UK that was of a higher standard than in the European Union, and that would pose an interesting question as to whether or not our commitment to mutual recognition trumped our desire to provide greater rights protections for any individual”.170


144.The evidence suggests that, were the UK to depart from the standards of human rights currently recognised within the EU, the system of mutual recognition which underpins EU Justice and Home Affairs cooperation would be hampered by legal arguments over its application to the UK.

145.We urge the Government not to introduce domestic human rights legislation that would jeopardise the UK’s participation in this important area of EU cooperation in the fight against international crime.

138 Q 81, Martin Howe QC expressed similar views at Q 19.

140 The accession criteria, or Copenhagen criteria (after the European Council in Copenhagen in 1993 which defined them) are the essential conditions that all candidate countries must satisfy to become an EU Member State. These are: (i) political criteria: stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities; (ii) economic criteria: a functioning market economy and the capacity to cope with competition and market forces; (iii) administrative and institutional capacity to effectively implement all EU law and the ability to take on the obligations of membership; and, (iv) the European Union’s ability to absorb new members, while maintaining the momentum of European integration.

149 Written evidence from the Welsh Government (HRA0001)

154 TEU, Article 7(i) states that if certain institutional criteria are met, the Council can determine whether “there is a clear risk of a serious breach by a Member State” of the Union’s values listed in TEU, Article 2, including democracy, the rule of law and respect for human rights. TEU, Article 7(ii) allows the European Council, acting unanimously, to determine the “existence of a serious breach by a Member State” of the same foundational values. If the Heads of Government establish such a serious breach, then the Council can decide to suspend aspects of the State in question’s EU membership rights including voting rights, in the Council.

155 Written evidence from Professors Anthony and McCrudden (HRA0003)

156 The inclusion in the Treaties of coercive provisions policing the individual Member State’s adherence to the principles of the rule of law and human rights is a comparatively recent occurrence. The lack of such provisions in this regard was highlighted by the events in 1999/2000 surrounding the formation in Austria of a coalition government between Jörg Haider’s Freedom Party and Wolfgang Schüssel’s People’s Party.

159 Tampere European Council 15 and 16 October 1999, ‘Presidency Conclusions’: [accessed 27 April 2016]

160 The Hague Programme: strengthening freedom, security and justice in the European Union, 13 December 2004 JAI 559 and the Stockholm Programme: An open and secure Europe serving and protecting citizens, 2 December 2009 JAI 896.

161 Council Framework Decision on the European arrest warrant and the surrender procedures between Member States (OJ L190, 18 July 2002, p 1). Other criminal measures based on mutual recognition include: (i) Council Framework Decision on the execution in the European Union of orders freezing property or evidence (OJ L169, 2 February 2003, p 45) (ii) Council Framework Decision on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (OJ L337, 16 December 2008, p 102); (iii) Council Framework Decision on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ L327, 5 December 2008, p 27); (iv) Council Framework Decision on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters (OJ L350, 30 December 2008, p 72); and (v) Council Framework Decision on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (OJ L294, 11 November 2009, p 20).

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