Confusion between the EU and the European Convention on Human Rights (‘ECHR’) is a perennial feature of British political debate: most recently, the front page of the Times confused the Strasbourg and Luxembourg Courts. Given this, many people will be surprised to learn that the United Kingdom will remain subject to the ECHR after Brexit. Those people will be still more surprised to learn that as things stand, Brexit is leading to precisely the opposite outcome: in the joint Political Declaration of October 2019, the UK committed to continued adherence to the Convention. On Monday 3 February 2020, the Commission took things a step further, in essence seeking to require that the UK retains the Human Rights Act 1998 (‘HRA’) substantially in its current form. This post seeks briefly to summarise the background and the Political Declaration (I) before outlining the sides’ opening negotiation gambits (II) and noting three paradoxes (III).
I. Background and the Political Declaration
Human rights clauses are standard in EU trade agreements. Ordinarily, these are framed as part of the EU’s foreign policy objectives, which must ‘advance in the wider world…the universality and indivisibility of human rights and fundamental freedoms’ (Article 21 TEU). They typically follow a tripartite structure: a reference in the preamble; a provision defining respect for human rights as an ‘essential element’ of the agreement; and a clause permitting suspension or termination should essential elements be violated (Martines, p.37). Scholars have accused the EU of a ‘double standard’ in how these are enforced less against more powerful states (Egan and Pech, p.265); moreover, agreements with established democracies have set the bar for triggering the human rights clause extremely high (see the EU-Canada Strategic Partnership Agreement (SPA), Article 28(3) and (7); compare, less clearly, the EU-Japan SPA, Article 43(4)).
As for the UK, its complex relationship with the ECHR is well-known. Until 2000, Convention rights could not be invoked before national courts. Upon the entry into force of the HRA, this changed: those rights, as reproduced in Schedule 1 to the Act, could be relied upon to interpret, assess and in some cases strike down legislation or executive acts. Strictly, the ECHR rights do not have direct effect: it is the Schedule 1 rights, which may diverge from their ECHR counterparts, which are invoked (Al Skeini v SSD  UKHL 26, §§10 and 90).
In its 2010 and 2015 manifestos, the Conservative party sought to replace this system with a ‘UK Bill of Rights’. The party’s 2014 paper gives the fullest explanation of its proposals, which included re-framing and narrowing certain rights and their field of application; removing the section 3 HRA obligation to interpret legislation in light of human rights; and removing the section 4 obligation to take into account Strasbourg case-law. It further proposed to render Strasbourg’s judgments ‘advisory’ and to withdraw from the ECHR if these changes were rejected. The 2017 Conservative manifesto paused these proposals pending Brexit, but promised a review of the human rights framework once Brexit was complete.
This brings us to the Brexit negotiations. Crucially, the first mention of human rights in the Brexit negotiations did not adopt the EU’s typical “essential element” frame. Instead, the European Council Guidelines of March 2018 stated that civil and criminal cooperation would require ‘strong safeguards to ensure full respect of fundamental rights’ (§§10, 13(i)). Human rights are a precondition to deeper civil and criminal cooperation, rather than merely part of the values underpinning the agreement. In parallel, level playing field provisions were framed as a precondition to deep single market access (ibid., §§7, 8 and 12). Both of these framings echo the rhetoric of a ‘balance of rights and obligations’ (§7 – partly inspired, no doubt, by talk of having and eating cake).
Come the Chequers White Paper in June 2018, the UK had accepted this: the paper stated that the security relationship must be ‘underpinned by appropriate safeguards’ and the UK ‘is committed to membership of the’ ECHR (p.53). This marked a significant policy shift from the 2017 manifesto.
Both the 2018 and 2019 versions of the joint Political Declaration developed this position further. In addition to general language similar to the “essential element” approach noted above (§6), they expressly committed the UK to ‘respect the framework of’ the ECHR (§7) and stated that criminal law enforcement and criminal judicial cooperation were underpinned by fundamental rights, ‘including continued adherence and giving effect to the ECHR’ and ‘procedural rights’ (§83 in 2018, §81 in 2019). The words ‘and giving effect to’ – which, as we shall see, were a pivotal addition – appear to have been inserted just before the Declaration was finalised (contrast the Outline of 14 November 2018, p.4). Separately, high-level language about a ‘level playing field’ remained (§79 in 2018, §77 in 2019).
II. The battle-lines
On Monday 3 February 2020, the UK Government and the Commission published their opening gambits in the future relationship negotiations. Attention has focussed on their clash over the extent to which a “level playing field” requires continued alignment with specific EU standards. Two human rights developments, however, deserve our attention.
First, and most strikingly, the Commission proposes that the agreement:
‘should provide for automatic termination of the law enforcement cooperation and judicial cooperation in criminal matters if the United Kingdom were to denounce the [ECHR or] were to abrogate domestic law giving effect to the ECHR, thus making it impossible for individuals to invoke the rights under the ECHR before the United Kingdom’s courts.’ (§113).
This goes beyond merely requiring the UK to continue adhering to the ECHR and to give effect to it in domestic law: it also circumscribes the way in which effect must be given, namely that individuals must be able to ‘invoke the rights under the ECHR’ in domestic courts. At first sight, this would radically reduce the room for manoeuvre in amending or replacing the HRA. The HRA already embodies a delicate compromise, with the ‘invo[cation]’ of rights not always capable of providing an adequate remedy (see Burden §§36-40) and with the invocable rights not perfectly tracking the ‘rights under the ECHR’ (see above). Reform that further weakened the remedies (such as removing the section 3 interpretative obligation) or the relationship between the ECHR rights and the HRA rights (such as significantly narrowing those domestic rights or removing the section 4 obligation to take Strasbourg’s case-law into account) would, at first sight, be likely to breach the proposed obligation.
The same paragraph of the Commission’s proposal also requires ‘judicial guarantees for a fair trial, including procedural rights, e.g. effective access to a lawyer.’ Notably, the UK is not presently bound by the Access to a Lawyer Directive (Directive 2013/48/EU).
Second, a number of the “level playing field” provisions have a fundamental rights angle. Labour rights include ‘fundamental rights at work’ (§96), raising the interesting question of whether workers’ annual leave rights are included (see C-385/17 Hein §§22-23); environmental standards include access to environmental information and justice (§98), rights flowing from the Aarhus Convention which also have a fundamental rights dimension (Helsinki; Article 6 ECHR); and the UK should be bound to the International Labour Organisation Conventions and the European Social Charter (§104). All of this is subject to a non-regression clause (§105).
The UK’s position is more cryptic. Its opening remarks are assertive: the agreement ‘cannot…include any regulatory alignment…or any supranational control in any area’ and cooperation in areas such as competition law, the environment and social policy ‘does not need to be managed through an international Treaty’. Yet the specific sections of the statement are more nuanced. As for law enforcement, ‘the CJEU and the EU legal order must not constrain the autonomy of the UK’s legal system in any way’ (which would exclude application of the Access to a Lawyer Directive but leaves room for remaining bound by the ECHR and HRA 1998); as for a level playing field, the UK would ‘not agree to measures… which go beyond those typically included in a comprehensive free trade agreement’, which appears inconsistent with the Commission’s proposals but leaves some room for manoeuvre (compare e.g. Article 23.3 of CETA). Tellingly, the UK’s statement makes no reference to human rights or its interpretation of its earlier ECHR commitment.
III. Analysis: three paradoxes
These are only opening gambits, and we shall have to wait to see whether the General Affairs Council adopts the Commission’s proposals later this month. However, three initial paradoxes arise.
First, the Commission’s attempt to bind the UK to the ECHR, HRA and other fundamental rights standards reflects a paradox that has been noted before in respect of data protection (here, §114): as a third country, the UK is in some ways more rather than less vulnerable to EU power. It is strongly arguable that the EU could not prevent a Member State’s withdrawal from the ECHR; in any event, it certainly could not dictate that ECHR rights must be directly invokable before national courts, something that is neither required by Strasbourg (Soering §120) nor even a question of EU law (C-571/10 Kamberaj §§59-63). Similarly, the UK’s opt-out allowed it to pick-and-choose the Justice and Home Affairs legislation it wished to adopt and so to avoid the requirements of the Access to a Lawyer Directive; as a third country, it now faces the Commission seeking to impose requirements in this very field.
Second, the Commission seeks to bind the UK to human rights obligations that do not bind the EU itself. Whilst renegotiation is under way, the EU has still not acceded to the ECHR; nor is it subject to the European Social Charter; and the relationship between the Charter rights and ECHR rights is, like the HRA/ECHR relationship, an uneasy one. Are Articles 6(3) TEU and 52(3) CFR, as interpreted by the CJEU, enough to conclude that individuals may ‘invoke the rights under the ECHR’ in the Union’s own legal order? In this paradox, it is the role of the CJEU that stands out. Professor Peers has argued that the CJEU’s decision in C-327/18 PPU RO rendered a clause on ECHR-adherence necessary for law enforcement cooperation. One might go a step further and ask whether RO’s reference to the UK’s incorporation of relevant ECHR rights (§52) was part of the impetus for the addition of the words ‘giving effect to’ in the Political Declaration, added two months after that judgment was handed down. Yet this is the same Court that twice blocked EU accession to the ECHR – on the second occasion, precisely to protect the autonomy of EU law.
Finally, the fragility of this re-framing. The level-playing field clauses are justified as the flipside of market access. The human rights clauses are justified as necessary for criminal cooperation. This is not, then, about exporting EU values or promoting human rights under Article 21 TEU: it is about obligations that are inextricably linked to, and thus the precondition for, particular forms of cooperation. Ultimately, however, this instrumentalist re-framing only justifies the imposition of a narrow set of rights in a still narrower set of circumstances. The ECHR clause in particular will be highly controversial in the UK, and it will be interesting to see how it fares as negotiations progress, particularly given the renewed promise to ‘update the Human Rights Act’ in the 2019 Conservative manifesto. Yet this points to a final paradox by way of closing: despite the long-standing shift towards justifying EU social and fundamental rights provisions primarily on the basis of values, not market or instrumentalist grounds (see C-270/97 and C-271/97 Deutsche Post), it is precisely the instrumental approach that at last yields – at least in the Commission’s proposal – human rights clauses with real bite.