Human Rights Hassle


Is Britain really tied to the jurisdiction of the European Court of Human Rights by its Trade and Co-operation Agreement with the EU?

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Readers may have seen that the new Lord Chancellor, Dominic Raab, has plans to curtail the jurisdiction of the European Court of Human Rights.  This has drawn adverse comment from European sources, who claim that co-operation under the Trade and Co-operation Agreement is directly tied to respect for the rulings of the Strasbourg-based court.

At this juncture it’s important to note that the European Court of Human Rights is not formally affiliated with the EU – it is a creation of the European Convention on Human Rights, which was signed in 1950.  The EU, however, requires new member states to be signatories to the Convention.  It is worth noting that signing the Convention does not indicate a meaningful respect for human rights – Russia is one of its members.

It is true that the TCA commits both parties to ‘giving effect to the rights and freedoms in that [European] Convention domestically’, and that the UK-EU relationship is predicated on that fact (Article 524.1, p. 692).  However, the terms of this provision are extremely vague.  Notably, it says nothing about the jurisdiction of the Strasbourg Court.

Indeed, human rights were not formally part of English and Welsh law until the Human Rights Act 1998 came into force, long after accession to the EU.  Even then, section 2 provides merely that the courts must take Strasbourg’s jurisprudence into account, but are not strictly bound by it.  This provoked no outcry from Europe before – why, in legal terms, should it do so now if its scope were curtailed?

Article 524 also does not specify what either side could consider a breach of human rights.  Ironically, the EU’s inability to bring Poland and Hungary into line over internal rule of law concerns might even justify UK sanctions against Brussels for failing to enforce the rule of law (covered by Article 6 of the Convention).  The EU should thus get its own house in order before muttering threats against the UK.

One could even argue that Article 524 does not strictly specify that the UK remain a signatory to the Convention at all – merely that it respect the rights that it lays down.  Respect for human rights, after all, hardly requires signing the convention, and neither does signing the convention guarantee it.

As it stands, Raab’s proposed reforms are hardly inflammatory.  At most, the government promises a faster mechanism to correct what it views as incorrect judgments on human rights questions, without providing much by way of detail.  Vaguer promises have been made to curtail Strasbourg’s influence more formally, but with even fewer specifics.  For the EU to threaten retaliation at this stage, therefore, demonstrates its relentless search for grievances it can exploit in future negotiations.

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Briefings For Britain