Saturday, 6 June 2015

Withdrawal from the European Convention of Human Rights ~ a thorny and difficult question

Update 7th July - Withdrawal from the Convention does not seem to be part of government policy.  At least this was said in debates in Parliament discussed in this blogpost.

Since the General Election, Human Rights (and their protection in the United Kingdom) have received enormous coverage from legal commentators including several posts on this blog -


Why we need human rights (1) - 17 year olds and the law
Why we need human rights (2) - Right to Life
Why we need human rights (3) - Mental health
Why we need human rights (4) - Gender, Civil Partnerships and Same sex marriage
Why we need human rights (5) - Cases since 1975

and, in another post, a debate in the House of Lords on 1st June was considered.  Speaking in the House of Commons, the Prime Minister refused to rule out withdrawing the United Kingdom from the European Convention on Human Rights - The Guardian 3rd June - (the debate is here).  "Withdrawal" was not a Conservative Party manifesto commitment and it was not mentioned in the Queen's Speech though the possibility was referred to by the Conservative Party in the autumn of 2014.

Background:

It is necessary to remember
that the European Convention on Human Rights operates under the aegis of the Council of Europe (47 Member States).  It is not a creation of the European Union though the EU itself is seeking to become a signatory to the convention.  The UK has been a member of the Council since its inception in 1949 and the European Convention was adopted by the Council in 1950, ratified by the UK in 1951 and entered into force on 3rd September 1953.

Within the UK, the Human Rights Act 1998 offers the principal protection of the human rights set out in the convention and, subject to a number of important restrictions, it is still possible for the UK citizen to get his case heard by the European Court of Human Rights and a few important cases continue to get there.  Inevitably, these cases often bring the Convention head on with government policy in matters such as "whole life" tariffs for murderers and whether serving prisoners should be permitted to vote in elections.

Two questions:

Q.1    Could the UK leave the Council

Q.2    Could the UK remain in the Council but leave the Convention.

Q1.  Could the UK leave the Council?

Yes, the UK could leave the Council of Europe.  This is clearly permitted by the Treaty creating the Council - see Statute of the Council of Europe.  Article 7 of the Statute states:

"Any member of the Council of Europe may withdraw by formally notifying the Secretary General of its intention to do so. Such withdrawal shall take effect at the end of the financial year in which it is notified, if the notification is given during the first nine months of that financial year. If the notification is given in the last three months of the financial year, it shall take effect at the end of the next financial year."

Whilst a State is a member, Article 3 applies:

"Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I."

Article 8 should also be noted:

"Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine."

There is therefore a mechanism for expelling any State found to be in "serious violation" of Article 3.

The fundamental rights and freedoms referred to in Article 3 are to be found in the European Convention on Human Rights 

On a political level, it must be doubtful that the British government would wish to diminish its political influence within Europe by leaving the Council.  Furthermore, there is little doubt that Scotland and Northern Ireland would not be willing to see this happen. 

Q.2  Could the UK remain in the Council but leave the Convention.


Article 58 of the European Convention on Human Rights permits "denunciation" of the Convention.  It states:
  1. A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months' notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties.
  2. Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective.
  3. Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a Party to this Convention under the same conditions.
  4. The Convention may be denounced in accordance with the provisions of the preceding paragraphs in respect of any territory to which it has been declared to extend under the terms of Article 56.
At face value, Article 58 seems to permit denunciation of the convention and the article is silent about whether membership of the Council of Europe would be affected.  However, Article 58 would have to be considered along with Article 3 of the Statute of the Council with the result that it may not be realistically possible for the UK to renounce the convention whilst remaining a member.

However that may be, let us suppose that it were possible to remain in the Council but not be party to the Convention.

Leaving the Convention would not necessarily mean that the State had suddenly taken all leave of its senses and departed from human rights protection and it could be possible for the State to show that its internal law continued to adhere to human rights as required by Article 3.  A suitably enforceable British Bill of Rights might achieve that.  (Keyword: enforceable)!  However that may be, it seems very doubtful whether the Council of Europe wish to accept this situation and, for my part, I do not see why it should do so!  Furthermore, a key protection in the convention is access for the citizen to the European Court of Human Rights and that protection would not apply in the event of a State leaving the Convention. 

It therefore seems that on the international level, short of withdrawing from membership of the Council, the UK is stuck with the Convention which includes the requirement to abide by judgments of the European Court of Human Rights to which the UK is a party - see Article 46 of the Convention.

Has any State ever denounced the Convention?

Yes.  Greece denounced the Convention in December 1969 during the period when Greece was governed by the military. (Greece also left the Council of Europe in December 1969).  The denunciation became effective on 13th June 1970  The "military junta" lasted from 1967 to 1974 and human rights abuses were considerable including the use of torture.  In 1974, Greece again accepted the Convention. 

See International Democracy Watch and, for a valuable study of that period, see the study by Alexandros Nafplitois - Britain and the Greek Colonels: accommodating the junta in the cold war.
Further material is at Andreas G. Papandreou Foundation - Council of Europe fights for democracy in Greece: 1967-1969

May the Convention be amended?

Yes.  The route to amendment is by way of getting the members of the Council to agree to a Protocol.  This has been done on a number of occasions.  Whether it is possible for the British government to obtain amendments to suit its own agenda is questionable.  This will be particularly so where the desire is to limit the role of the European Court of Human Rights - e.g. to remove the binding nature of judgments to which the UK is a party.

Protocols have come about where there has been general agreement that change was necessary as occurred, for example, with the abolition of the death penalty - Protocol 13.  A complete list of the protocols and other documents is available at Council of Europe Treaty Office.

An interesting suggestion from Lord Mackay of Clashfern:

In the House of Lords debate on 1st June - (the debate may be read HERE), the former Lord Chancellor and eminent Scots lawyer - Lord Mackay of Clashfern said:

"I will make a suggestion for a possible way forward. We could seek an amendment to the convention to exempt from the obligation to implement the decision of the Strasbourg court where the court has decided that a statute of a member state contravenes the convention, and in that member state no court of that state has authority to set aside or modify that statute, if the legislature of that member state passes a resolution, which for stated reasons declines to implement the Strasbourg court’s decision. If such an amendment could be agreed, I venture to think that the effectiveness of the treaty would not be substantially diminished."

This idea would allow national parliaments to override the applicability of a decision of the European Court of Human Rights but only where there was no national court with authority to set aside national legislation.  That is the situation in the UK where Parliament is the supreme legal authority. In some States there is a court with authority to disapply legislation if, for example, it is unconstitutional in some way or perhaps if it is non-compliant with human rights.  The most any UK court may do is to make a declaration of incompatibility under the Human Rights Act 1998.  Prior to the Act, even that was not possible though judges could have made "observations" or, in suitable cases, the judge could have applied the rule of statutory interpretation to the effect that clear words are needed for the court to hold that Parliament intended to go against an international obligation.    

Perhaps governments might like the idea of such an override mechanism particularly if, through political dominance in the legislature, they were able to get their Parliament to agree to an override.  Whether the government will take the bait on this idea remains to be seen but it seems highly doubtful that there would be general agreement on such a situation given that it would leave governments entirely free to ignore those decisions of the court with which, for whatever reasons, it disagreed.  Whilst Lord Mackay argues that reasons should be stated if the override is exercised, what would happen if the Council of Europe were to disagree with those reasons?  Too many problems start to appear and I suspect that Lord Mackay's idea would unravel.

Links:

Council of Europe - Table showing Member States and their position regarding the Convention.

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