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The Government’s European Union (Withdrawal) Bill: How the exception relating to the Charter of Fundamental Rights of the European Union will impact on the protection of Human Rights in UK

Introduction

 

On 13 July 2017 the Government of the UK published the long-awaited European Union (Withdrawal) Bill, a single legislative measure which is planned to enter into force in March 2019, when the two-year Brexit negotiation process comes to an end. In brief, the bill will revoke the European Communities Act of 1972 and transpose European Union (EU) law, ‘wherever practical’, into UK law. Any European Court of Justice’s case law issued until March 2019 will also acquire the legal strength and authority of a UK Supreme Court’s decision.

Although Parliament will be able to vote on it no sooner than next autumn, the publication of the Bill has already resulted in a great amount of criticisms, above all, on the exclusion of the Charter of Fundamental Rights of the EU (hereafter, ‘the Charter’) from the application of the Bill, pursuant to its section 5 (4). This post first argues that the Charter, as many EU laws, is currently part of UK domestic law, thanks to section 2(1) of the European Communities Act 1972; which contradicts the Government’s stance in this respect; then, it argues that after Brexit, and with regard to those cases currently governed by EU law, the exclusion of the Charter would diminish the level of protection of human rights in the UK. This notwithstanding the European Convention of Human Rights (ECHR), incorporated in UK law via the 1998 Human Rights Act will still be enforced, but it argues that the ECHR will not grant the same human rights protection.

 

The Charter of Fundamental Rights of the European Union and the European Convention of Human Rights

 

In 2000, at the Nice European Council, the EU Members States adopted the Charter of Fundamental Rights of the EU, which in some respects is broader than the ECHR in that it enlists, in addition to civil and political rights, economic and social and societal rights. In 2009, the Charter became binding pursuant to article 6(1) of the Treaty of Lisbon, which assigned to the Charter ‘the same legal value as the Treaties.’ EU Member States have a duty to observe it only in application of the EU law, namely: when a national legislation transposes an EU directive; 
a public authority applies EU law; or a national court applies or interprets EU law.

 

The Treaty of Lisbon, under article 6 (2), provides that the EU “shall accede” to the ECHR. While the accession has not taken place yet, all EU institutions and Member States are in any case obliged to interpret the Charter in light of existing jurisprudence of the ECtHR. Under Article 52(3) of the Charter, States have a legal obligation to give the same meaning and scope to the rights of the two instruments, insofar as they correspond.

 

On the applicability of the Charter to the UK

 

In Lisbon, Protocol 30 to the treaty related to the application of the Charter of fundamental rights of the European Union to Poland and to the United Kingdom was adopted. This Protocol generated a significant confusion with respect to the legal effects on the UK. Some have argued that this implied a sort of opting out, so that the Charter has no legal value in the UK. Others embraced an opposite view, so that the Charter could have created new justiciable rights. To sort out this controversy, in 2014 the European Scrutiny Committee of the House of Commons published a report with the evocative title of ‘The application of the EU Charter of Fundamental Rights in the UK: a state of confusion’. The Committee concluded that the Protocol had reaffirmed that the Charter has legal strength in so far as all national authorities had to apply and interpret EU law, but it did not create new independent rights. In this respect, the Charter is directly effective in the UK, by virtue of Section 2(1) of the European Communities Act 1972 which in its relevant parts reads as follows:

 

‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly'[emphasis added].

 

The Committee indeed recommended that, in order to disapply the Charter from the UK, ‘primary legislation be introduced by way of an amendment to the European Communities Act 1972’. Therefore, since the Charter has the same legal value as the Treaties, with respect of any EU law, it is automatically part of the UK domestic law, pursuant to the 1972 Act of Parliament. In fact UK Courts have often made reference to the Charter and checked its compatibility with the EU law as implemented in UK.[1] Furthermore, in 2013 the Grand Chamber of the Court of Justice of the EU held:

 

‘where a court of a Member State is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by European Union law, implements the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised’ [emphasis added].

 

Consequently, it is surprising that under Section 5(4) of the European Union (Withdrawal) Bill, ‘[t]he Charter of Fundamental Rights is not part of domestic law on or after exit’ [emphasis added].

 

On the protection of fundamental rights provided by the Charter and the ECHR

 

After Brexit, as provided by the European Union (Withdrawal) Bill, any public authority or national court in the UK could keep on applying or interpreting what was originally EU law, as this would become, ‘wherever practical’, UK law. However, so far, the relevant EU law has been interpreted in the case law of the Court of Justice of the EU in light of the Charter. If the Charter were not applicable to the UK any more, this might result in then-former EU law being significantly different from its ‘original’ version at the moment of its transposition; furthermore, its interpretation would be left to decisions to be taken on a case-by-case basis. These two factors taken together might have serious consequences in respect to the certainty of the law.

Concerning the application of the law, as far as the rights overlapping with the ECHR are concerned, this would result in a different kind of protection. Indeed, those civil and political rights provided by the Charter, in compliance with one of the most fundamental principles of the EU law, have a direct effect in the UK as many EU laws do. But if the Charter had no effect in the UK after Brexit, victims of human rights violations could only rely on the ECHR. Yet, under section 6 of the Human Rights Act 1998, while ‘[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right’, this does not apply to an act if

 

—(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

 

Thus, the kind of protection provided by the ECHR is not comparable to what people in the UK currently have in the application of EU law, thanks to the Charter and the European Communities Act 1972.

The same kind of reasoning would a fortiori apply to all those rights that are not protected by the Human Rights Act, including many economic and social rights, when they already are justiciable rights in the UK and in the application of EU law. Indeed, while it is true that the Charter did not add any new justiciable right, it is currently relevant when it comes to verify whether any EU law is compatible with it; to the contrary, domestic law (as all former EU legislation will become after the European Union (Withdrawal) Bill is adopted) granting the same rights will not prevail over conflicting statutes.

 

Conclusion

 

On 13 July 2017 the Government of the UK published the European Union (Withdrawal) Bill, which is going to be discussed in Parliament no sooner than next autumn. Section 5(2) of the Bill, which is meant to enter into force when the UK actually leaves the EU, provides for the Charter of Fundamental Rights of the EU not to be considered domestic law in the UK at the moment of Brexit, nor after it. This post has shown how the Charter is currently part of UK domestic law, thanks to Section 2(1) of the European Communities Act 1972. It has also been argued that, should the Bill enter into force as it stands at the moment, there may arise a problem in terms of the certainty of the law because, lacking the possibility of making reference to the Charter when interpreting and applying it, former EU law would already miss something at the moment of its transposition and national authorities would be left with the burden of filling the gaps it would leave. As for the protection of fundamental rights in the UK, this might be subjected to a considerable change too. Indeed, concerning those civil and political rights that are also provided by the ECHR, national authorities are bound not to give priority to the Human Rights Act, incorporating the ECHR in the UK system, when this is in conflict with national legislation. Thus, the protection of these rights, when violated in application of a norm incorporated by the then former EU law, will be left to a different, less incisive, kind of remedy than that offered by the Charter (and many EU laws!) at present. This would be a fortiori true with regard to those rights, including economic and social rights, which are not protected by the Human Rights Act.

[1] See, for instance, [2017] EWCA Civ 431, [2017] EWCA Civ 397 at 74; [2017] EWHC 1174 (Admin) at 100-101; [2017] EWHC 931 (Admin) at 59; [2017] EWHC 577 (Admin) at 38; [2017] EWCA Civ 35; [2017] EWCA Civ 41 at 136; [2017] EWCA Civ 243 at 1; [2017] EWHC 331 (Admin) at 17; [2017] EWHC 827 (Admin) at 30; [2016] QB 1003 at [99]; [2017] CAT 9 at 80; [2017] UKUT 125 (IAC) at 34; [2017] UKFTT 167 (TC) at 435; on the Charter not conferring new rights nor expanding those rights stemming from EU law, see, e.g., [2017] EWHC 695 (QB) at 13-16; on the disapplication of a national measures conflicting with the Charter see, e.g., [2017] EWCA Civ 121 at 60; [2015] EWCA Civ 311, [2015] 3 WLR 409. Interestingly, the First Section of the ECtHR has recently reaffirmed the legally binding nature of the Charter in a case against the UK.May

 

 

 

 

 

 

 

 

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The Hutchinson and Hammerton cases. The Human Rights Act within the case law of the European Court of Human Rights

Introduction.

The Human Rights Act 1998 (HRA) is a piece of legislation incorporating the rights set out in the European Convention on Human Rights (ECHR) into UK law. The Act allows individuals to challenge a decision of a public authority within UK Courts, on the grounds that it violates their rights under the ECHR. It places upon domestic courts the duty to interpret all existing legislation in a manner that it is compatible with the ECHR. Whenever this is not possible, the Act allows for a ‘declaration of incompatibility’ to be issued by the UK Supreme Court; however, this declaration does not affect the validity of the legislation contested. This remains exclusive competence of the Parliarment.

The Act was passed into law in 1998 with overwhelming cross-party support and the backing of the then Conservative Party leadership. However, today, the same Act is at the centre of a hot debate originating in the Conservative Party’s intention to repeal this piece of legislation. The Conservative Manifesto 2015 promised to “scrap the Human Rights Act, and introduce a British Bill of Rights” and statements have been made by Prime Minister David Cameron and Home Secretary Theresa May to the effect that the Act constitutes an unbearable intrusion by a foreign Court into UK politics and affairs. Furthermore, Prime Minister David Cameron has declared that the UK may even consider withdrawing from the European Convention system. The upcoming referendum on ‘Brexit’, althought formally unrelated, will probably revive the debate on both issues.

The present post wishes to contribute to the debate on the possibility of repealing the Human Rights Act by discussing its role in relation to the case law of the European Court of Human Rights (EctHR), with specific reference to two recent judgments in which the HRA has played a substantial role.

Hutchinson and Hammerton

Only a very small percentage of the applications lodged against the UK before the ECtHR passes the initial threshold of admissibility: between 1999 and 2010, the estimated number was around three per cent.1 Among inadmissibility decisions, many are motivated by the non-exhaustion of domestic remedies. The exhaustion rule, set forth in Article 35 of the European Convention, expresses a general principle of international law2 and is grounded in the principle of subsidiarity, according to the notion that “it falls, firstly, to the national authorities to redress any violation of the Convention.”3 The rationale behind the rule is to grant national authorities the opportunity to prevent or put right the alleged violations of the Convention.4 Thus, the ECtHR declares inadmissible applications which are not preceded by the activation of available and effective domestic remedies designed to redress the violation(s) contested.

The case law of the ECtHR demonstrates that non-exhaustion of remedies provided by the Human Rights Act often constitutes the ground for the inadmissibility of complaints lodged against the UK.5 Whenever claimants lodge an application against the UK, they must have relied, at least in substance, on the Human Rights Act before British courts in order for their application to be admissible. Accordingly, the Human Rights Act represents an important “filter”, which is capable of preventing the European Court of Human Rights from finding against the UK. British courts, well-aware of the importance of this filter, make use of their powers to interpret domestic law in accordance with the Human Rights Act so as to prevent the possibility that a certain piece of legislation gives rise to a violation of the European Convention.

This happened, for instance, in the recent Hutchinson case, whereby the European Court of Human Rights found no violation of the Convention thanks to the interpretative developments achieved at the domestic level by the Court of Appeal.6 The issue at stake was the indefinite duration of life sentences which, according to the European Court of Human Rights’ case law, is compatible with Article 3 of the Convention (prohibition of torture and inhuman and degrading treatments) only where there is both a prospect of release and a possibility of review.7 In the UK, the Secretary of State has the discretion to release a whole-life prisoner under Section 30 of the Crime (Sentences) Act 1997. However, chapter 12 of the so-called Lifer Manual provides that release can be only ordered if a prisoner is terminally ill or physically incapacitated.8 This restrictive provision has been at the centre of a debate between UK Courts and the European Court of Human Rights.9 Eventually, in R v. Newell; R v. McLoughlin, the Court of Appeal supported a wide interpretation of Section 30, allowing the Secretary of State to exercise his power of release outside the strict limits of the Lifer Manual.10 Acknowledging the importance of such an interpretation, the European Court of Human Rights concluded, in Hutchinson, that “the power to release under section 30 of the 2003 Act, exercised in the manner delineated in the Court of Appeal’s judgments in Bieber and Oakes, and now R. v. Newell; R v. McLoughlin, is sufficient to comply with the requirements of Article 3”.11

The case law of the ECtHR also demonstrates that flaws in the system delineated by the Human Rights Act may result in adverse judgments against the UK. An example can be found in the recent Hammerton case, which originated in a violation of the due process of law: the applicant had been sentenced for contempt of court after a committal hearing where he had not benefitted from the assistance of a lawyer.12 The Court of Appeal acknowledged that the lack of legal representation constituted a violation of the right to legal assistance set out in Article 6 § 3 c ECHR. However, the High Court dismissed the applicant’s claims for damages under common law, noting the lack of malice of the County Court. Furthermore, it refused the applicant’s claim for damages under the Human Rights Act 1998, noting that section 9(3) precludes damages in respect of a judicial act done in good faith, with the exception of damages required by Article 5 § 5 of the Convention, which was deemed not to be applicable in the applicant’s case because the irregularity was not so gross or obvious as to be not in accordance with the law.13 Thus, the applicant had not been afforded appropriate redress, nor it was possible for him to argue that the relevant legislation ought to be read in a manner compatible with Article 13 ECHR (right to an effective remedy) or to seek a declaration of incompatibility, because the Human Rights Act excludes from the scope of “Convention rights” the right guaranteed by Article 13 ECHR. Because of this lacuna in the British system of protection for human rights, the ECtHR dismissed the Government’s objection as to non-exhaustion of domestic remedies and eventually found a violation of Article 6 ECHR (fair trial), because “the domestic remedies available to the applicant in relation to his complaint under Article 6 were not fully “effective” for the purposes of Article 13, since they were not capable of affording adequate redress for the prejudice suffered by him in the form of the lengthened deprivation of liberty”.14

The Human Rights Act and the case law of the ECtHR.

The above mentioned decisions demonstrate the by the Human Rights Act: on the one hand, it represents a valuable tool for adjusting the British legal system to the values enshrined in the European Convention on Human Rights, thereby avoiding adverse judgments by the European Court; on the other hand, it encourages domestic authorities to step in to protect citizens where a lacuna in the domestic law endangers their rights.

A recent study has underlined that the number of adverse judgments against the UK has shown a slight downward trend since 2005, possibly motivated by the entry into force of the Human Rights Act.15 Even though the same study warns that the annual figures are so low that it is not possible to discern a clear trend pre- and post- Human Rights Act, the figures for the years following the release of this study appear to confirm the existence of such a trend. Indeed, in 2011, only eight adverse judgments were released, against 1,553 applications allocated to a judicial formation; in 2012, there were ten adverse judgments against 1,732 allocated applications; in 2013, eight adverse judgments against 912 allocated applications; in 2014 four adverse judgments against 720 allocated applications; and in 2015, four adverse judgments against 575 allocated applications. These numbers confirm the downward trend noted by the study, and also a slight downward trend in the number of allocated applications. It would be beyond the limits of the present contribution to investigate elements such as the number of inadmissibility decisions grounded on the presence of an effective remedy provided by the Human Rights Act: however, the two judgements analysed above clearly demonstrate the relevance that the Act plays in the determinations reached by the European Court of Human Rights.

On a general note, it is worth reiterating that the Human Rights Act was adopted by the UK Parliaments with an overwhelming cross-party majority and that the same European Convention on Human Rights has been the result of the work of prominent British lawyers, such as Sir David Patrick Maxwell Fyfe, a Conservative politician who was the Chair of the Committee on Legal and Administrative Questions of the Council of Europe’s Consultative Assembly from 1949 to 1952. Repealing the Human Rights Act might risk not only increasing the number of adverse judgments by the ECtHR, but also undermining the prominent position established by the UK within the Council of Europe and taint its international reputation as a pioneer in the protection of human rights. Using the words of human rights lawyer Jonathan Cooper, “there is nothing more British than the Human Rights Act. And through it, our values are being woven into human rights law across the globe.

1

A. Donald, J. Gordon, P. Leach, The UK and the European Court of Human Rights,Equality and Human Rights Commission Research report 83, 2012, p 34

2

ICJ, Interhandel (Switzerland v Unted States) Judgment of 21 March 1959; Article 41(1)(c) ICCPR; Article 46 American Convention on Human Rights; Articles 50 and 56(5) African Charter of Human and People’s Rights

3

Gafgen v Germany (GC), App no 22978/05, 1 June 2010; Siliadin v France, App no 73316/01, 26 July 2005

5

Amongst many others, see: Peacock v UK (Decision), App no 52335/12, 5 January 2016; Bahmanzadeh v UK (Decision), App no 35752/13, 5 January 2016; Roberts v UK (Decision), App no 59703/13, 5 January 2016

6

Hutchinson v. UK, App no 57592/08, 3 February 2015

7

Kafkaris v Cyprus [GC] Application no. 21906/04, 12 February 2008

8

Indeterminate Sentence Manual (the Lifer Manual), issued as Prison Service Order 4700

9

R v Bieber [2009] 1 WLR 223; R v David Oakes and others [2012] EWCA Crim 2435, [2013] 2 Cr App R (S) 22; Vinter and others v UK [GC], Apps nos 66069/09, 130/10, 3896/10, 9 July 2013

11

Hutchinson v. UK, App no 57592/08, 3 February 2015

12

Hammerton v UK, App no 6287/10, 17 March 2016, paras 6-15

13

Hammerton v UK, paras 26-35

14

Hammerton v UK, paras 146-147

15

A. Donald, J. Gordon, P. Leach, The UK and the European Court of Human Rights, Equality and Human Rights Commission Research report 83, 2012, p 36

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