Mr Émile T. McHarsky-Todoroff LL.B (Surrey) LL.M Candidate (LSE), Associate Tutor in EU Law (University of Surrey) and Legal Consultant (Spectrum Legal Consulting).
There has been a considerable degree of noise around both the concept of “Brexit” (a potential UK exit from the EU) and the possibility of the UK withdrawing from the European Convention of Human Rights (ECHR) in some fashion. Leaving political arguments to one side, this blog post is interested in whether these two hypotheticals may interconnect; specifically, whether a UK exit from the ECHR would entail that the UK has to also leave the EU. This immediately begs the question of what one means by “has to”. If this is taken to mean a legal requirement that the UK leaves the EU should it choose to withdraw from the ECHR, then the answer is a flat “no”. While the Lisbon Treaty introduced the machinery for a Member State to leave the Union (now Article 50 of the Treaty on European Union (TEU)),[1] there is no “foot to backside” rule in the EU; in other words there is no Treaty provision which specifically allows for a Member State to be ejected from the EU.[2] Therefore, this post will aim to explore the different legal tools which could be used to push the UK out of the EU door.
Is ECHR membership mandatory?
Human rights are covered in several places among the Treaties. First, the TEU’s Preamble affirms the Member States’ ‘attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms…’[3] Moreover, Article 2 TEU states that ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights…’. Furthermore, Article 6(3) TEU states that human rights ‘as guaranteed’ inter alia by the ECHR, constitute general principles of EU law. The Charter of Fundamental Rights of the European Union (EU Charter)[4] must also be mentioned since it (post-Lisbon[5]) carries the same force of the Treaties and it represents the EU’s most sophisticated foray into rights protection. It goes without saying that any Member State which leaves the ECHR but not the EU remains subject to the EU Charter, although it only applies to Member States ‘when they are implementing Union law’. [6]
Despite the frequent references on human rights in EU law, there is no explicit rule that current Member States must be members of the ECHR. By way of contrast, human rights are a key plank of the Copenhagen Criteria for accession; Article 49 TEU places a condition on aspiring Member States to adhere to and be ready to promote the values in Article 2 TEU (which lists human rights). Accession to the ECHR is not specifically mentioned, but it is seen as the best way of proving compliance[7] and indeed, the European Commission has stated that it views accession to the ECHR as mandatory for candidate countries, as it forms a part of the acquis communitaire.[8] While effective protection for human rights was stated by the ECJ to be a prerequisite for joining the (then) European Community as far back as 1978,[9] some commentators assert that the main reason for the formalisation of these criteria (and the zeal with which they are enforced) is based on the need to ensure the stability of new Member States coming out of the ex-Communist block; the concern being that these states could otherwise become a burden on the older EU Member States.[10] From this perspective, it appears that the technical hurdle of proving sufficient human rights protection (by signing up to the ECHR) was always intended to be reserved for newer Member States.
Opposing views on the link between leaving the ECHR and the EU
When answering a question posed by a member of the European Parliament, the European Commission reiterated that protection of human rights is a fundamental principle of EU law and that the ECHR forms part of the acquis for the purposes of candidate states.[11] Further, the Commission stated that a withdrawal from the ECHR on the part of a Member State ‘could, in certain circumstances, raise concern as regards the effective protection of fundamental rights by its authorities’;[12] a hypothetical situation which the Commission felt should be assessed under Articles 6 and 7 TEU if and when it arises.
Experts give nuanced views on what the legal effect of the UK withdrawing from the ECHR or abolishing/amending/replacing the Human Rights Act 1998 (HRA) (which implements the ECHR)[13] would be. Some commentators point out that adherence to the ECHR is a legal obligation of new EU entrants (thus avoiding the question of whether this applies to current Member States)[14] while others contend that the explicit requirement for adherence with the ECHR for candidate countries absolves, by implication, current Member States from such responsibility.[15] Others hold the view that as long as the HRA is replaced with a bill of rights which ‘remains true to incorporating in it those fundamental human rights that we are speaking’[16] then the UK will have complied with its obligations under EU law (a rationale which should equally apply to an ECHR withdrawal).
The opposite view was espoused by Professor Francesca Klug,[17] who argued in her evidence to the Constitutional Affairs Committee that ratifying the Convention is a requirement of membership of the EU (with no distinction made between new and old Member States).[18] Lord Falconer, who was Lord Chancellor at the time, further opined in evidence that while the Treaties are ambiguously drafted, ‘for all intents and purposes’ remaining a member of the EU after an exit from the ECHR is ‘not possible’.[19]
The legal dimension of an exit
While there is no explicit or implicit[20] right of expulsion in the EU treaties, there are indirect routes to expulsion which are legal in nature. One such proposed route takes the shape of determined and widespread use of the enhanced co-operation procedure[21] to effectively side step the offending Member State.[22] There are several issues with this, for instance the complexity involved in using the procedure for standard business and the fact that it is not available in all fields.[23] In a similar vein, it is suggested that Member States may produce a new ‘Treaty-based partnership’ outside the current EU framework and exclude the offending Member State.[24] In this respect, the latter idea appears outlandish and is laced with serious issues-for starters the inevitable difficulties arising from the existence of two parallel EUs, not to mention the opportunity for discord which negotiating a whole new set of treaties will bring.[25]
The fault with these proposed measures is that they rely on bypassing the errant Member State. Instead, the approach which is likely to work is to pressurise the Member State into leaving. This can be achieved by applying the Article 7(2)-(3) TEU procedure to suspend a Member State’s voting rights for a serious breach of the values listed in Article 2 TEU (which include human rights). Currently there are two actions under discussion in the UK-repealing the HRA and withdrawing from the ECHR. In order for an Article 7 suspension to be effected, it will be necessary to show that the level of Human Rights protection in the UK has dropped to such a level as to cause a serious breach. The relevant question is whether rights are protected and not necessarily how; the Government’s Balance of Competences review admitted that a failure to protect fundamental rights would breach EU law.[26]
However, even if the HRA is repealed and replaced with a bill of rights, this would arguably only constitute a serious breach if the level of protection provided by this hypothetical bill of rights is at odds with the level of protection required to satisfy Articles 2 and 7 TEU. The same should, logically, apply in the case of a withdrawal from the ECHR, subject to sufficient protections being put in place. While the meaning of Article 2 TEU is currently vague, it is submitted that it will become much less vague once the EU accedes to the ECHR as provided for in Article 6(2) TEU. It is submitted that once accession is complete, this will imbue the term “human rights” in Article 2 TEU with an even more direct link to the ECHR, which will now reverberate throughout the EU’s DNA. If, therefore, a Member State introduces human rights legislation which is manifestly at odds with the ECHR or produces court decisions which contradict established ECtHR case law, it is arguable that it will not be hard to establish ‘serious breach’ for the purposes of Article 7 TEU.
In sum, while there is no way for the UK to be forcefully expelled from the EU if it leaves the ECHR, it is submitted that there is/ will soon be a sufficient connection between the Article 2 TEU emphasis on human rights and the ECHR, to theoretically make an Article 7 TEU suspension plausible. This, if pursued, would work as a de facto expulsion since it would force a voluntary exit. It is another matter entirely whether the EU would be ready to “pull the trigger”.
[1] Consolidated version of the Treaty on European Union, 13 December 2007, 2008/C 115/01. (TEU)
[2] Phoebus Athanassiou, ‘Withdrawal and Expulsion from the EU and EMU: Some Reflections’ (2009) No.10, December, European Central Bank Legal Working Paper Series, available: http://www.ecb.europa.eu/pub/pdf/scplps/ecblwp10.pdf accessed 6 December 2014 (Athanassiou, ‘Withdrawal and Expulsion from the EU and EMU: Some Reflections’)
[3] TEU, Preamble.
[4] Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, (Charter)
[5] Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, 2007/C 306/01.
[6] Charter, Art. 51(1).
[7] Dr. Noelle Quenivet, ‘Can the UK retain its membership in the EU if it withdraws from the ECHR?’ EuroRights, available: http://www.eurorights.org.uk/post/46418689287/can-the-uk-retain-its-membership-in-the-eu-if-it accessed 7 December 2014.
[8] Commission Opinion on Bulgaria’s Application for Membership of the European Union (1997) July 15, DOC/97/11, 15.
[9] Case 93/78 Mattheus v Doego [1978] ECR 2203.
[10] Heather Grabbe, The EU’s Transformative Power Europeanization through Conditionality in Central and Eastern Europe (Palgrave Macmillan, 2006), 10; Sezen Uğurlu, ‘Political Criteria for Accession to the EU: Human Rights Conditionality and the Croatian Case’ (2013) Cilt 68, No. 3, Ankara Üniversitesi, SBF Dergisi 165, 165.
[11] Vaughne Miller, ‘Is adherence to the European Convention on Human Rights a Condition of European Union
Membership?’ (2014) March, House of Commons Standard Note, SN/IA/6577, 3-4.
[12] Ibid, 4.
[13] Human Rights Act 1998 c.42.
[14] House of Commons Constitutional Affairs Committee, Minutes of Evidence, Tuesday 31 October 2006, available: http://www.publications.parliament.uk/pa/cm200506/cmselect/cmconst/1703/6103101.htm accessed 7 December 2014, Q63 (Mr Justice Singh). (Constitutional Affairs Committee)
[15] Rosalind English, ‘It’s time we packed our bags at Strasbourg, says report’ (2011) February, UK Human Rights Blog, available: http://ukhumanrightsblog.com/2011/02/09/its-time-we-packed-our-bags-at-strasbourg-says-report/ accessed 7 December 2014.
[16] Ibid, Q41 (Professor Jonathan Fisher QC).
[17] Professional Research Fellow, London School of Economics and Political Science, Director of Human Rights Futures Project (also academic expert, Doughty Street Chambers).
[18] Constitutional Affairs Committee, Q17-Q19.
[19] Constitutional Affairs Committee, Q96.
[20] Athanassiou, ‘Withdrawal and Expulsion from the EU and EMU: Some Reflections’, 32-36.
[21] TEU, Article 20.
[22] Athanassiou, ‘Withdrawal and Expulsion from the EU and EMU: Some Reflections’, 36-37.
[23] Ibid, 37.
[24] J. Emmanouilidis, ‘Withdrawal or Creation of a New Union – A Way Out of the EU’s Constitutional Dilemma?’ (2007) June, Bertelsmann Stiftung/Center for Applied Policy Research, Spotlight Europe 2007/02.
[25] Athanassiou, ‘Withdrawal and Expulsion from the EU and EMU: Some Reflections’, 38.
[26] HM Government, ‘Review of the Balance of Competences between the United Kingdom and the European Union Fundamental Rights’ (2014) available: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/334999/review-of-boc-between-uk-eu-fundamental-rights.pdf accessed 7 December 2014, 71.