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Unavoidable Protection of Human Rights from Europe

About The Author

Thomas Horton (Former Writer)

Thomas studied Law at the University of Birmingham, and graduated with a 2:1 in July 2013. In the elapsed time, Thomas has worked for law firm HowardKennedyFsi LLP as a paralegal in the property department. Thomas has also been awarded a Major Scholarship by the Honourable Society of the Inner Temple and will begin the BPTC with City Law School in September 2014.

A practical analysis of the United Kingdom’s position should it decide to leave the European Convention on Human Rights (ECHR) is necessary, especially given the growing confusion as to the effect of the Charter of Fundamental Rights of the European Union (CFREU). The analysis will demonstrate the potential effects and also provide an understanding of the European legal order.

As a note: the EU and ECHR represent forerunners of global constitutional prototypes for international law, applying a constitutionalized approach to this UK-EU scenario example will illustrate the purpose of international legal orders that have adopted a Lockean theory of politics and law: the protection of rights.

The ECHR is positioned in a separate proximity to the EU, both geographically and through its purpose, which requires one to consider the UK’s membership with the EU if it were to withdraw from the ECHR. In summary, the UK can be a member of the EU and withdraw from the ECHR, supplemented, however, with the caveat of showing a continuing protection for human rights at the domestic level. It must be made clear, to show the significance of this example, that EU law does not embody the human rights protection of the ECHR. Even so, the Preamble to the Treaty on European Union (TEU) identifies Member States’ ‘attachment to the principles of liberty, democracy, and respect for human rights and fundamental freedoms and the rule of law’. More significantly, these liberal principles are unequivocally presented in Article 2 TEU:

The Union is founded on the values for human dignity, freedom, democracy, equality, the rule of law and the respect for human rights, including the rights of persons belonging to minorities. These values are common to Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

These liberal principles, however, are not obligatory, but merely a confirmation that Member States accept human rights. Further, EU law only requires direct protection for human rights to be presented whilst prospective nations are seeking to satisfy the (formerly known) Copenhagen Criteria, which would ideally be presented in the form of ratification of the ECHR. Though, existing Member States did not have to satisfy this requirement (see Article 49 TEU).

On the other hand, the EU, as a legal personality (see Article 47 TEU), is required to represent and promote the protection of human rights in the international legal order (see Article 3(5) TEU). Additionally, the EU endorses the ‘rights, freedoms and principle’ that are present in the Charter of Fundamental Rights of the European Union (CFREU), and has acceded eventual membership to the ECHR (see Article 6(1)-(2) TEU). More importantly, Article 6(3) TEU states:

Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.

These general principles, a primary source of EU law, take precedence over national law; national law that does not respect general principles, which includes protection for human rights, must be set aside. The enforcement of general principles of EU law was demonstrated in the ECJ’s decision in Case C-144/04 Mangold v Helm [2006] 1 CMLR 43, which ensured the effectiveness of the general principle of non-discrimination in respect of age.

Moreover the CFREU, firstly, has made these general principles more applicable between disputes with Member States in the Court of Justice of the European Union, and, secondly, accorded those Charter Rights the same meaning and scope of those rights protected by the ECHR (see Article 52(3) CFREU). The applicability and scope of the CFREU was clearly enunciated by the ECJ in their decision of Case C-400/10 McB v LE [2011] at para 53:

Moreover, it follows from Article 52(3) of the Charter that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, their meaning and scope are to be the same as those laid down by the ECHR. However, that provision does not preclude the grant of wider protection by European Union law. Under Article 7 of the Charter, ‘[e]veryone has the right to respect for his or her private and family life, home and communications’. The wording of Article 8(1) of the ECHR is identical to that of the said Article 7, except that it uses the expression ‘correspondence’ instead of ‘communications’. That being so, it is clear that the said Article 7 contains rights corresponding to those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must therefore be given the same meaning and the same scope as Article 8(1) of the ECHR

Adjudication in this manner is fundamental to the progress of constitutionalization of rights that are threatened from the UK’s departure from the ECHR. Summarily, if the UK were to withdraw from the ECHR, yet retain membership of the EU, they would still be bound by the CFREU and therefore, indirectly, the ECHR.

The premise of this example has been a projection of the possible eventuality of the UK’s dissent from the ECHR. However this dissent has surfaced a co-existing liberal theory in the UK alongside the liberal ECHR, which is practised through the UK’s membership of the EU. Correspondingly, the case law of the ECHR would still be considered, as it was before its applicability in the UK through the Human Rights Act 1998, when the UK courts are faced with the protection of rights, as Steyn LJ’s decision in Regina v Secretary of State for the Home Department, Ex parte Leech [1993] EWCA Civ 12, where in reference to a decision of the European Court of Human Rights, it was stated that

The important point is that the decision, although not directly binding in England, reinforces a conclusion that we have arrived at in the light of the principles of our domestic jurisprudence.

It appears that the UK simply cannot escape from the protection of human rights without interference or reference of some supranational institution. 

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Tagged: European Union, Human Rights

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