Is Repealing The Human Rights Human Activity Compatible Amongst Eu Law?

 

Steve Peers

 

The novel British regime has indicated that it is determined to repeal the UK’s ain Human Rights Act (HRA) inwards the nigh future. There are a number of legal together with political problems amongst this idea, which are aptly summarised (with many links to farther discussion) inwards a novel Jack of Kent blog post. But the number of the overlap betwixt the HRA together with European Union law isn’t discussed there. I blogged terminal twelvemonth on how the Conservative party’s blog post. But the number of the overlap betwixt the HRA together with European Union law isn’t discussed there. I blogged previously, withdrawal from the ECHR could affect upon the UK’s European Union membership, but nosotros are non at that stage yet.

 

Secondly, nosotros possess got non yet seen the details of the government’s proposals to repeal the HRA, but I volition assume for directly that they volition non aim to disapply the EU’s Charter of Rights inwards the domestic laws of the UK. I possess got separately blog post. But the number of the overlap betwixt the HRA together with European Union law isn’t discussed there. I blogged on the reasons why this would endure unfeasible, but let’s assume for directly (until nosotros run across those proposals) that this is non the government’s intention.

 

The inwardness of the regime conception (if it follows the template laid out inwards the previous strategy document) is to weaken the domestic arrangement of human rights protection, decouple it from the ECHR arrangement together with innovate novel rules which weaken noun protection of human rights for whatsoever grouping of people whom the regime deems to endure sufficiently despicable (for to a greater extent than details, run across my critique of the conception blog post. But the number of the overlap betwixt the HRA together with European Union law isn’t discussed there. I here). How does that relate to European Union law?

 

The fundamental questions hither are: is the conception to repeal the HRA compatible amongst European Union law? If not, to what extent? And what are the consequences?

 

At the outset, nosotros should Federal Reserve annotation that the European Union Charter of Rights together with the rights protected past times the ECHR don’t e'er overlap. So repeal of the HRA could non do whatsoever conflict where (a) the Charter applies, but the ECHR does non (as regards social rights, for instance), or (b) the ECHR applies, but the Charter does non – because the Charter only applies where at that topographic point is a link to European Union law, equally the CJEU laid out inwards the judgment inwards Fransson. There’s only a possible conflict where both the Charter together with the ECHR apply to an issue.

 

What form of cases would these be? I propose 3 examples, although this isn’t an exhaustive list. First of all, whatsoever limitations on the correct to a fair trial granted to criminal suspects which resulted from repeal of the HRA could conflict amongst the European Union legislation on their rights  to interpretation together with translation, together with their rights to information nigh proceedings, which the Great Britain has opted inwards to. (There are other European Union measures together with proposals inwards this area, but the Great Britain hasn’t opted inwards to them).

 

Secondly, whatsoever requirement that telecommunication service providers retain information for handing over to law enforcement authorities falls inside the ambit of European Union law, since that would constitute a derogation from the dominion inwards the EU’s telecom privacy Directive. Derogations from European Union law autumn inside the ambit of the Charter, equally the CJEU of late ruled inwards blog post. But the number of the overlap betwixt the HRA together with European Union law isn’t discussed there. I Pfleger; I possess got discussed this dot (as regards national information retentivity laws) inwards exceptional blog post. But the number of the overlap betwixt the HRA together with European Union law isn’t discussed there. I earlier on this blog.

This is relevant non but to the ‘DRIP’ Act passed past times the Great Britain Parliament terminal twelvemonth (as I blog post. But the number of the overlap betwixt the HRA together with European Union law isn’t discussed there. I pointed out at the time), but also to whatsoever requirement that telecommunication providers retain together with paw over the content of communications, which shape business office of the government’s plans for a so-called ‘Snooper’s Charter’. On the other hand, interception of communications straight past times the constabulary or safety services would non autumn inside the ambit of European Union law, since at that topographic point are no European Union measures dealing amongst such issues inwards a purely domestic context.

 

Thirdly, the master copy conception for HRA repeal would strip ‘illegal’ immigrants together with unusual criminals of the possibility of invoking at to the lowest degree but about (if non all) human rights. Due to the UK’s opt-outs from European Union judge together with abode affairs law, non all European Union measures dealing amongst immigration issues apply to the UK. But depending on how these demonised groups are defined, this could outcome inwards a conflict amongst European Union rules on the gratuitous displace of European Union citizens together with their theatre unit of measurement members, or amongst European Union legislation on asylum (the Great Britain is withal leap past times the get-go stage of this legislation, together with has also opted inwards to parts of the minute stage of it).

 

In most of these cases, nosotros can’t endure sure enough that the novel plans would conflict amongst European Union law until nosotros run across the exact text of the proposals. However, it’s already clear, inwards my view, that the DRIP Act conflicts amongst the European Union Charter inwards part.

 

What happens inwards the trial of a conflict? There are 2 issues here. First of all, the European Union Charter refers to the ECHR equally regards those Charter rights which ‘correspond’ to ECHR rights, such equally the correct to a mortal together with theatre unit of measurement life together with the prohibition on torture. It says that the relevant Charter rights possess got the same ‘meaning together with scope’ equally their ECHR equivalents. The explanations to the Charter brand clear that the instance law of the European Court of Human Rights also applies inwards this context.

 

Secondly, the Treaties furnish for the European Union itself to leave of absence a political party to the ECHR. This procedure has been stalled because inwards Dec 2014, the CJEU ruled that the draft treaty to this effect was non compatible amongst European Union law (as discussed blog post. But the number of the overlap betwixt the HRA together with European Union law isn’t discussed there. I here). However, since that judgment the European Union has reopened discussions on how to accede to the ECHR.

 

The before policy document recognised that at that topographic point mightiness endure a conflict betwixt European Union law together with the Conservative party’s plans. It stated that the document’s seat volition endure ‘reflected inwards the rules that volition regulation the EU’s interaction amongst the [Human Rights] Court’ (these rules possess got non yet been agreed, pending a bargain on accession of the European Union to the ECHR). The policy document also threatened a veto over the ratification of the EU’s accession treaty to the ECHR if ‘the UK’s novel human rights framework is [not] respected’.

 

More generally, the strategy document concluded that human rights issues mightiness endure an number forming business office of the overall renegotiation of the UK’s purpose inwards the European Union which the regime is nigh to embark upon. It stated that if at that topographic point is anything inwards European Union law which ‘encroaches upon our novel human rights framework’, thence the renegotiation volition possess got to address it. However, an immediate repeal of the HRA would probable bring effect before the renegotiation of European Union membership (if successful) takes effect.

 

What are the systemic implications of the government’s repeal of the HRA for European Union law?

 

First of all, to the extent that European Union law applies to a exceptional issue, the government’s plans are in regulation incompatible amongst European Union law, inwards the shape of the Charter equally interpreted inwards lite of the ECHR, together with the jurisprudence of the European Court of Human Rights, past times the CJEU.  The CJEU’s instance law for many years has insisted that European Union law must endure interpreted non only inwards lite of the Convention but inwards lite of the other Court’s instance law. But these are exactly the 2 elements of the UK’s Human Rights Act which the Conservative strategy newspaper most strongly opposes. So the novel proposals would only endure compatible amongst European Union law if they explicitly or implicitly brand the novel ‘British Bill of Rights’ alone dependent champaign to the special purpose for European Union law inwards the Great Britain equally laid out inwards the European Communities Act. 

In practice, this volition hateful that despite the repeal of the HRA together with the beingness of a replacement ‘British Bill of Rights’ inwards its place, a potent shape of human rights protection will withal be inwards the UK’s domestic law. Wherever at that topographic point is a sufficient link to European Union law, it volition stay possible to invoke the rights laid out inwards the Charter. In fact, the Charter has stronger legal forcefulness than the HRA, since it tin endure used past times any courtroom to disapply Acts of Parliament, whereas the HRA tin only endure used past times higher courts to declare that other Acts of Parliament are ‘incompatible’ amongst the HRA. We possess got seen recent examples of the potent legal effect of the Charter inwards the Great Britain inwards the Benkarbouche together with Vidal-Hall judgments (see my tidings of these cases blog post. But the number of the overlap betwixt the HRA together with European Union law isn’t discussed there. I here together with blog post. But the number of the overlap betwixt the HRA together with European Union law isn’t discussed there. I here). And since the Charter has stronger legal effect than the HRA, it is real probable also to possess got a stronger legal effect (as good equally a substantively higher marking of human rights protection) than the hereafter ‘British Bill of Rights’.

Indeed, the strategy document implicitly foresaw these problems, when it suggested that human rights protection volition probable endure on the negotiation tabular array when the Great Britain renegotiates its European Union membership. The work amongst this is that human rights protection is a full general legal dominion that forms business office of the constitutional foundations of European Union law. As such, the affect of the Charter inwards the Great Britain could non endure addressed without a Treaty amendment – together with it currently seems likely that the renegotiation volition non outcome inwards an immediate Treaty amendment.

Secondly, it seems possible that the government’s plans volition complicate the procedure of the EU’s accession to the ECHR. This volition endure clearer 1 time the draft Great Britain Bill is unveiled, together with farther steps are taken equally regards the EU’s accession to the ECHR. There would endure no conflict if the European Union internal rules on ECHR accession furnish that the judgments of the European Court of Human Rights volition have, later the EU’s accession to the Convention, equally weak an affect on European Union law (and Member States’ actions inside its scope) equally the Conservative political party suggests should endure the instance for the UK. Time volition tell whether this is the case.

Overall, then, it is non slowly to furnish for a full general exemption from human rights protection inwards European Union law (as the failed endeavour to do thence for the Great Britain already, the infamous Protocol thirty attached to the Treaty of Lisbon, confirms). Nor is it real probable that other Member U.S.A. would endure cracking to allow it if it were. So quite apart from the other complications relating to the repeal of the HRA, the regime would possess got to bring the continued beingness of a potent shape of human rights protection inwards the Great Britain equally long equally such cases are linked to European Union law, at to the lowest degree until the Great Britain is able to renegotiate its European Union membership – together with in all likelihood later that dot too.

 

Barnard & Peers: chapter ix

Image credit: bbc.co.uk

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