The Deal in Detail 6): Law and Constitution

1 Jan

Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford.

In his foreword to the Government’s explanation of the UK-EU Trade and Cooperation Agreement, the Prime Minister says “the agreement provides for the UK to take back control of our laws, affording no role for EU law and no jurisdiction for the European Court of Justice. The only laws we will have to obey are the ones made by the Parliament we elect.”

Strictly, no agreement with the EU has ever been necessary for the UK to take back control of its laws, but the Prime Minister’s point is that nothing in this new agreement requires the UK to conform to EU law or otherwise to be subject to the jurisdiction of the European Court of Justice (ECJ). The truth of this claim is obviously important. So too is the question of whether, even if the ECJ’s jurisdiction is brought to an end, the agreement might (inadvertently) compound the problem of the European Court of Human Rights (ECtHR), strengthening its jurisdiction over the UK by tying it to free trade with the EU.

Like the Withdrawal Agreement, the UK-EU Trade and Cooperation Agreement, when ratified, will be an international treaty between the UK and the EU. Both agreements make provision for dispute resolution, and in neither agreement is the ECJ the arbiter, for the obvious reason that the ECJ is the EU’s own court.

However, parts of the Withdrawal Agreement, especially the Protocol on Ireland/Northern Ireland, do make provision for EU law to continue to apply, in relation to which the ECJ has a continuing role. In adopting the Withdrawal Agreement, the UK agreed to legislate to give some of the agreement’s terms domestic legal force, including priority over other legislation.

There is no such requirement in the UK-EU Trade and Cooperation Agreement, and the agreement does not import concepts of EU law or otherwise make provision for the UK to be subject to ECJ rule. The only limited exception concerns continuing UK participation in EU programmes, such as Horizon, in relation to which the ECJ obviously has a role. However, this is quite different from the UK agreeing to follow EU law and agreeing to be subject to the ECJ’s jurisdiction.

The Agreement creates a complex network of institutions that will manage relations between the UK and the EU across various fields. In the event of disputes, different options will be open, depending on the context, including third-party arbitration. In some cases, the UK and the EU may be free to suspend performance of obligations in retaliation to breaches. The UK and the EU will thus enforce the agreement by way of arbitration and diplomacy. The EU cannot enforce the agreement against the UK by way of the ECJ, which has no relevant jurisdiction.

At various points during the negotiations, the EU has sought from the UK an undertaking that it would remain a member state of the ECHR and would agree not to amend or repeal the Human Rights Act 1998. This was an obviously unreasonable negotiating aim. Happily, the Agreement contains no such undertaking. The point might seem academic because it is Government policy for the UK to remain party to the ECHR. However, the UK’s treaty right to leave the ECHR is an important protection. It would be open to a successive government, led by a latter-day Clement Attlee for example, to choose to leave. While the Agreement is to some extent conditional on mutual human rights assurances, they fall well short of an undertaking not to denounce the ECHR and thus to protect human rights by other (better) means.

In the opening words of the preamble to the Agreement, the UK and the EU reaffirm “their commitment to democratic principles, to the rule of law, to human rights, to countering proliferation of weapons of mass destruction and to the fight against climate change, which constitute essential elements of this and supplementing agreements”.

Part Six, which concerns dispute resolution, again confirms that these are “essential elements” of the agreement. The UK and the EU agree to continue to uphold shared values and principles of democracy, the rule of law and respect for human rights and reaffirm their respect for the Universal Declaration of Human Rights (UDHR) and the international human rights treaties to which they are parties. The UK is of course a party to the ECHR, but the agreement does not mention the ECHR at this point (the EU has a treaty commitment to join the ECHR, but the ECJ has frustrated its fulfilment; EU member states are parties to the ECHR). Respect for treaties to which one is a party is consistent with maintaining a right to leave in future.

Part Six provides that either the UK or the EU may terminate or suspend the operation of the Agreement if there has been “a serious and substantial failure” by the other party to fulfil any of the obligations that are essential elements of the Agreement. However, the agreement specifies that any measures adopted would have to be proportionate and for a failure to be serious and substantial failure, “its gravity and nature would have to be of an exceptional sort that threatens peace and security or that has international repercussions”.

The Agreement specifies that defeating the object and purpose of the Paris Agreement would count, but there is no mention of leaving the ECHR. The omission is justified, because denouncing the ECHR would not itself be a failure of respect for human rights. On the contrary, it might well be a decision that human rights, democracy and the rule of law are better realised by a mature parliamentary democracy not subject to the ECHR’s jurisdiction. While the EU might attempt to argue that denouncing the ECHR was a breach of the Agreement, the argument would be weak indeed. It would also be superfluous because the EU, like the UK, is free to terminate the entire Agreement provided it gives twelve months’ notice.

Part Three of the Agreement, which concerns law enforcement and judicial cooperation in criminal matters, is somewhat more specific. The Agreement notes that the basis for cooperation is that the UK, the EU, and EU member states have long respected democracy, the rule of law and the protection of human rights, including rights set out in the UDHR and the ECHR, as well as the importance of giving domestic effect to the ECHR.

The Agreement disavows any intention to modify existing obligations to respect fundamental rights, especially those affirmed in the ECHR or, on the part of the EU and its member states, in the Charter of Fundamental Rights. Part Three permits the UK or the EU to terminate this part of the Agreement by giving nine months’ notice (other parts of the Agreement also provide for partial termination on nine months’ notice).

It also provides for earlier termination if the reason for termination is that the UK or an EU member state has denounced the ECHR, , specifying that in this case this part shall case to have effect from the date on which denunciation becomes effective (which the ECHR provides requires six months’ notice). Denouncing the ECHR would neither breach Part Three nor vitiate a condition on which the continuing application of Part Three depends; instead, the EU would have to choose to exercise its right to terminate.

In ratifying this agreement, the UK will not be undertaking not to withdraw from the ECHR, let alone not to amend or repeal the Human Rights Act. If the UK subsequently exercises its treaty right to leave the ECHR, it will be choosing, like Australia, Canada or New Zealand, to live without an international (regional) human rights court.

Whether to make this choice is an important question of foreign policy, a question with significant constitutional implications. Leaving the ECHR would not be a breach of the Agreement. It would not justify suspension or termination of agreed terms of trade. It might be a reason for the EU to terminate law enforcement and judicial cooperation, but that would be a choice for the EU to make and the EU, like the UK, is in any case free to terminate the Agreement. If the UK were to leave the ECHR, it would be prudent to provide assurances to the EU that there would be no relevant change in the protection of liberty within domestic law. But whether to leave the ECHR, and how to protect human rights, would remain for the UK freely to decide.

This is the sixth of a series of pieces from Policy Exchange looking at specific issues that arise from the Brexit trade deal.

John Howell: It is time for Britain to take the Council of Europe more seriously

9 Oct

John Howell is the Member of Parliament for Henley, and a Member of the Parliamentary Assembly of the Council of Europe.

“Why are we still in the Council of Europe when we have left the EU?” was a question put to me by a colleague in the Conservative Parliamentary Party.

I tried to explain that the Council of Europe was not and had never been part of the EU. That it did things in a very different way to the EU and was almost twice the size of the EU, with some 47 members. That it had made a long and valuable contribution to peace and security across Europe.  I also tried to point out that no country had become a member of the EU without first being part of the Council of Europe.

In the end, I fell back on our old mantra that was simple and yet to the point. We were in the Council of Europe because while we had left the EU we had not left Europe, and this was now one of the most important ways of keeping contact across the continent and playing our part in seeing what positions needed a common view on European issues.

I could have also pointed our that the Council looks after the European Court of Human Rights (which is not and has never been part of the EU) and to which, as a member of the UK’s parliamentary delegation to the Council, I help elect the judges.

The conversation went on. “So, what has the Council of Europe ever done for us?” asked my colleague. The Council was set up to ensure that human rights prevail across Europe. It is the leading human rights organisation in Europe and most of what it does, it does through the prism of human rights. But it also stands up for democracy and for the rule of law.

On a statutory basis the Council does not legislate itself. There is no equivalent of the EU Commission giving instruction. What the Council does is set the standards that member states can apply through individual conventions or treaties that come through in member states’ domestic legislation.

It was, for example, the Council which started the debate about human trafficking which has come forward into UK domestic legislation and is at the centre of our foreign policy. It was also the Council which tackled the problem of protections for children and to ensure that they are kept safe from violence and exploitation. The Convention for the Protection of Children against Sexual Exploitation and Sexual Abuse came into force on 1 July 2010 and aims to prevent the sexual abuse of children, including at home or in the family.

Another area with which I am very involved is in monitoring human rights in Turkey. Keeping Turkey on course is crucial to a Europe that is pacific and calm. Unfortunately, at the moment we have a situation where lawyers in Turkey are being attacked by the Government and given heavy prison sentences for defending what are seen as “terrorism-related” individuals. Lawyers should not be criminalised for exercising their profession or convicted on dubious charge,s and we are putting pressure on Turkey to review these convictions.

In addition, the Council of Europe played a pioneering role in the struggle for the abolition of capital punishment. I have long opposed the death penalty and regard it as having no place in democratic society. The abolition of the death penalty is a precondition for accession to the Council. No executions have been carried out in any of the member states since 1997. I know that there are some in this country who take a different view, but I am not going to go into that here.

Some of the other ways in which the Council of Europe operates include scrutiny through a system of specific committees. It can also question Ministers, Prime Ministers and Presidents of member states. The Prime Minister of the United Kingdom has in the past been questioned in this capacity.

On the question of upholding democracy, the Council conducts monitoring of elections around Europe to ensure that they are fair and free. This is a crucial element of the Council’s work to make sure that all countries conform with proper election practice. My suggestion, though, that the Council should monitor the last set of EU elections did not go down terribly well!

It also looks to take a common view on certain key issues such as the recent elections in Belarus and the role of Russia in a modern Europe. Belarus is not a member of the Council; it has not given up the death penalty. But the current post-election situation needs to be exposed, which the Council is doing.

Similarly, with the rule of law it has a body of legal experts known as the Venice Commission to which laws, such as the new laws in Russia, can be put for opinion as to whether they meet modern standards in human rights, the rule of law and democracy.

In addition, the Council of Europe has as associate members two groups which may cause surprise – Israel and the Palestinians. Sadly, Israel is often treated with nothing short of anti-Semitism by certain sections of the parliamentary assembly of the Council. Both groups tend to give predictable speeches about issues that affect them. But just imagine what could be achieved if we could organise meetings where the Council tried to bring them together to talk about peace in the region and how to deal with settlements.

Finally, I want to touch on the European Court of Human Rights. As one former Lord Chancellor made clear in answer to a question I had put, this is a court where we have well over a 90 per cent success rate. That is, many cases are simply not brought for hearing but are dismissed before they are even heard. This is no wonder when we have a judicial system that is so advanced and developed and a model of judicial approach.

States also have the power to derogate from individual elements of the European Convention on Human Rights provided they meet a number of conditions. The first of these is that there is a war or other public emergency threatening the life of the nation. The situation with regard to Covid-19 has raised issues in this respect, but illustrates that the Convention is meant to be practical.

The Council of Europe was formed in 1949. The United Kingdom was foremost amongst its ten founding members and, under the leadership of Winston Churchill, the inspiration for its creation. It is part of the rules-based order in which we invest so much time and energy. It is often accused of being just a talking shop. But there is real value in having a place where major issues that face our continent can be talked through to see whether a common line is required and what that line should be.

And yet, whilst it is almost revered across much of Europe, this country rarely sends even a journalist to cover its proceedings. It is necessary not only to take this organisation seriously but also to continue to show the real leadership it needs

The Constitution, Democracy and Rights Commission pledged in the Conservative Manifesto is being quietly shelved

23 Jul

The page of the Conservative Manifesto which most alarmed supporters of the status quo was page 48.  And the part of this page – which dealt broadly with constitutional matters – that alarmed them most was at its end.  We refer to the long paragraph that promised a “Constitution, Democracy & Rights Commission” “in our first year”.

It explained that this commission would examine the Royal Prerogative, the House of Lords, the courts, judicial review, and access to justice for ordinary people. It would also “update the Human Rights Act and administrative law”.

That first matter, the Royal Prerogative, was clearly a reference to “Miller Two” – the Supreme Court judgement that sunk Boris Johnson’s prorogation plan, conflating as it did so the legislature with Parliament as a whole, and thereby arguing, with supreme constitutional illiteracy, that the monarch is not part of Parliament.

Needless to say, our reading of that judgement is controversial – and so therefore was the section about the proposed commission on page 48.  Which has a consequence: namely, that the commission was, from the start, what the Australians call “a tall poppy”.  It was exposed to critics who would want to scythe it down.

There were further complications from the Government side, once the dust had settled on last December’s election victory.  For putting together the commission turned out to present all manner of difficulties which for whatever reason were unforeseen at the time of its invention.

First of all, which items from this rich menu should its members select?  It’s no secret that Dominic Cummings is not exactly a fan of the way in which judicial review works.  Consider his convulsive reaction to the Court of Appeal’s decision in February to suspend the deportation of criminals to the Caribbean.

He was reported to have described this to officials as “a perfect symbol of the British state’s dysfunction”, adding that there must be “urgent action on the farce that judicial review has become”.  But what if the putative commission went haring off first after another quarry – Lords reform, say?

Those expert on Parliamentary reform might not be knowledgeable to the same degree on justice access, say.  People who have studied the Royal Prerogative may not have mastered judicial review.  The commission members might not be able to agree what dishes to select; too many diners spoil the broth.

ConservativeHome cannot be sure which of Cummings, various SpAds, Munira Mirza, different advisers and Robert Buckland came up with the Commission idea.  But we hear that the manifesto commitment is dead and that there will be no such commission – this year or any in other year.

Downing Street and Ministers will resist this take, of course.  They will explain that there will be lots of mini-commissions, ranging across the same constitututional, political and legal turf.  So the commission hasn’t really been scrapped, you see.  Just re-invented in other forms.  Hmmm.

At any rate, the principle is clear.  If you want a commission on judicial reform, “available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays”, then select members whose area of expertise is the law.

Which doesn’t mean only such people.  But there is no reason why intelligent lay members should also be experts on how the Lords or Commons works.  Meanwhile, the UK’s relationship with the European Court of Human Rights is the elephant in the constitutional room – one on which not just page 48 but the entire manifesto was silent.