Steve Peers
Many drivers have encountered the unfortunate experience of hitting a small animal that darted across the road at the wrong moment. Reactions vary from distress to indifference, but some feel a sense of triumph, having removed an obstacle from their path.
This last reaction mirrors the Conservative party’s stance on EU law within their UK human rights law reform proposals. They aim to diminish EU law’s influence, much like a driver indifferent to roadkill.
While this proposal doesn’t recommend withdrawing from the European Convention on Human Rights (ECHR) immediately, it hints at the possibility if the Council of Europe opposes the plans. This concession seems designed to appease those who believe these proposals don’t go far enough in weakening human rights protections in UK law.
The proposal also doesn’t advocate for disregarding the EU’s Charter of Rights in domestic law. This idea, previously suggested by a House of Commons committee, is illogical and irrelevant in this context.
Instead, the proposal aims to weaken domestic human rights protections, separate them from the ECHR system, and introduce rules that diminish the safeguards for certain groups deemed undesirable by the proposal’s authors. This raises questions about the proposal’s compatibility with EU law.
The crucial questions are: do these proposals align with EU law? If not, to what degree do they deviate? What are the repercussions?
It’s important to acknowledge that the EU Charter of Rights and the ECHR don’t always cover the same areas. Conflicts only arise when both apply, such as limitations on fair trial rights for criminal suspects, potentially clashing with EU laws on interpretation, translation, and procedural information rights.
Similarly, any data retention requirements for telecommunications providers fall under EU law. This is because they deviate from the EU’s telecom privacy Directive. Such deviations are subject to the Charter, as established by the Court of Justice of the European Union (CJEU). This pertains to the UK’s ‘DRIP’ Act and any future requirements for retaining communication content. However, direct interception by law enforcement wouldn’t fall under EU law, as no EU regulations address purely domestic scenarios.
Furthermore, the Conservative party’s aim to restrict human rights for ‘illegal’ immigrants and foreign criminals could clash with EU rules on the free movement of EU citizens and their families, as well as asylum legislation.
While the full impact remains uncertain until the final text is released, it appears that the ‘DRIP’ Act already partially conflicts with the EU Charter.
In cases of conflict, the EU Charter connects with the ECHR for corresponding rights, implying that the European Court of Human Rights’ case law also applies.
Additionally, while the EU is in the process of becoming a party to the ECHR, the Conservative policy document incorrectly states that negotiations are ongoing. However, signature and ratification are delayed while the CJEU assesses its compatibility with EU law. The EU also needs to establish internal regulations on this matter.
The policy document acknowledges potential conflicts between EU law and the Conservative party’s proposals. It suggests incorporating its stance into the rules governing EU-ECHR interactions and threatens to veto the EU’s accession to the ECHR if the UK’s new framework isn’t respected.
The document proposes addressing any EU law “encroachments” on the new human rights framework during the UK’s EU membership renegotiation, which the Conservative party supports.
These plans hinge on a Conservative majority government, facing strong opposition from Labour and Liberal Democrats. If implemented, they could complicate the EU’s accession to the ECHR.
Furthermore, the Conservative plans seem at odds with the Charter’s interpretation, considering the ECHR and the European Court of Human Rights’ jurisprudence. The CJEU has consistently emphasized interpreting EU law in light of the Convention and the European Court of Human Rights’ case law, the very elements the Conservative strategy paper challenges.
The new proposals would only align with EU law if they include a clause prioritizing EU law in the UK, as defined in the European Communities Act. This scenario is highly improbable given the stance of Conservative Eurosceptics.
The strategy paper anticipates this by suggesting that human rights protection will likely be a negotiation point in the UK’s EU membership renegotiation. However, this is problematic because human rights protection is a fundamental principle of EU law, making exemptions difficult, as demonstrated by the failed Protocol 30 in the Treaty of Lisbon. Other Member States are unlikely to support such exemptions.
Therefore, if the Conservative party secures a majority and implements this strategy, it could increase the likelihood of an unsuccessful renegotiation and, consequently, the UK’s exit from the EU.
Barnard & Peers: chapter 2, chapter 9