I know that it’s a separate institution from the EU, but it is Britain’s membership in the Council of Europe which gives the European Court of Human Rights jurisdiction over the British courts and government.
Is withdrawing from the Council of Europe one of the steps to “reclaim sovereignty” that the Brexiteers natter on about?
“Is Britain planning?” Right now I don’t think it’s possible to view Britain as an entity capable of planning and carrying out anything with regard to Europe.
Fair point!
Let me re-phrase the question: is leaving the jurisdiction of the European Court of Human Rights one of PM May’s “red lines”?
Has it been advanced as a goal by Brexiteers?
Is it one of the conditions in the Withdrawal Agreement?
The Withdrawal Agreement only covers the UK’s relationship with the EU, so no it contains no mention of the COE. The COE question is essentially political :- Theresa May wants to leave it, largely because when she was Home Secretary the ECHR handed down several judgements that personally humiliated her. There is however no majority in Parliament for leaving the COE, and likely never will be.
I do take your point however :- if Brexiteers were to be consistent, surely they would want to withdraw from every international body which exercises jurisdiction over the UK ? Apparently apart from the COE and the EU, there are something like 40 such bodies.
Note that if the UK does leave the COE, that in a line from Greenland to the Bering Straits, it and Belarus would be the only countries that aren’t members :- and Belarus is barred from joining.
Some Brexiters want to leave it, some don’t; many don’t even realize “the EU” and “the Council of Europe” are different things.
Part of the issue with Brexit is that most people think of every international, Europe-wideish treaty as being “Europe/the EU”, two expressions which get used interchangeably although they’re, again, not; the news and politicians are the first ones who rarely make the distinction. Understanding that Schengen, the European UHC exchange, the EU, the European Court of Human Rights… are all different things born of different treaties requires a level of “paying attention / digging for information” which most people simply and naturally don’t see the need for, any more than your average Canadian, American or German feels the need to know the details of what is managed at the country-wide level and what at the province/state level. Some of it gets explained in Civics classes, but a lot of people (specially older ones) never had such a course and, for those who did, the situation is likely to have changed since they took it.
In our 30s, neither me nor my brother, at different state run schools, had any class that could be described as civics. I don’t believe we had so much as a single session on UK political systems more recent than the Wars of the Roses, forget international. It wasn’t offered as an optional class either.
There’s currently a recommendation that schools teach a ‘Personal, Social, Heath and Economics’ class, which politics could be taught in, but there’s not even any advice on teaching it on the syllabus website, what discussion there has been has been focused on the sex ed element.
It’s not surprising we’re pretty clueless.
It’s quite possible, probable even’ that most people who voted leave, did so for two main reasons. Wanting to stop free movement (ignoring the fact that it works both ways) and because they disliked those EHCR judgements that Mrs May (and many others) were very unhappy with.
The first may well have unintended consequences, as the second is not relevant.
I have no time for her or her party, but to be fair, her complaint about the cases that embarrassed her as Home Secretary was more about the way our law (specifically, the Human Rights Act) bound our Supreme Court to ECHR precedents (where before, the ECHR only got involved if a complainant could raise the money, time and energy to make a case in Strasbourg). But I suppose that’s a distinction without a difference for most of her party members. BTW, we have still to see any draft of the British Bill of Rights her predecessor promised us all those years ago.
There is a link to judgements of the European Court of Justice (which rules on disputes on the application of EU law), in that cases before them might include arguments related to the Human Rights Convention, which is also adopted into EU law. And getting out of the jurisdiction of the ECJ is/was one of her red lines.
In Spain it’s currently required at several levels (I think The Nephews first got some of it in 2nd grade), but for me it was only required in 11th grade and for college-track students. Spain joined the EU when I was in 12th grade. We got to study Constitutional History, the current Consti and which items were managed at the different levels of government, but there was very little material about international bodies; we also didn’t get to study anything about the different legal systems in Spanish history, which is something I know The Nephews are getting. People in their mid-40s would have been the first to get an explanation on the EU, and only those of them who were college-track.
A problem with Civics is that it’s the kind of thing that doesn’t seem to impinge directly on employability (the current obsession of a lot of people involved in the design of educational curriculums) except maybe for lawyers, but which has a lot of influence on other aspects of a person’s life. Like Philosophy, Music Theory or Art History, it’s something very few people will actually make a living from but which helps us understand each other and make informed choices about things that can have a large impact (no, seriously: for anybody asking “what’s art got to do with anything”, if you understand psychological reactions to color and shape you’re more likely to figure out how to dress appropriately for different intervews, which brings us back to employability).
To add to that: Interestingly, the EU itself is not a party to the European Convention on Human Rights (but all its Member States are). There is a clause in the EU Treaties mandating it to join in its own name. For years this couldn’t be done because it required an amendment to the Convention: The original wording of the Convention allowed only states to join, and the EU is not a state; an amendment to this effect was for years blocked by Russia for political reasons but ultimately adopted. Then the EU tried to join but the accession agreement was found to be in violation of the EU Treaties by the European Court of Justice. So currently, the EU, for reasons which lie within its own sphere, is not an ECHrRparty even though it has made a commitment to join.
As you point out, the EU has a commitment to join. It’s largely symbolic :- my rights as an Eu citizen far exceed those basic rights available under the ECHR.
Could you cite the case where the ECJ blocked entry ?
I don’t recall it.
What were the cases that “embarrassed” May as Home Secretary?
I found this article from four years ago, where PM Cameron said that the decisions of the European Court of Human Rights had “devalued” human rights in Britain, and that a British Bill of Rights would fix “the mess”.
Reading between the lines, it sounds like he thinks that the fact that individuals accused of terrorism or criminal offences can invoke rights under the European Convention on human rights is the problem?
The UK was a member of the COE from the beginning. The UK did not incorporate the Convention into its domestic law.
This became an issue, as said upthread, Convention rights could not be enforced in English, Scottish and N Irish courts.
The British jurisdictions became embarrassed by a series of adverse results in Strasbourg beginning in the 1970’s and continuing till the late 1990’s. This was remember the era of The Troubles and PIRA and the British were very miffed to have Johnny Foreigner tell them they could not whip, hammer and otherwise discipline a bunch of uppity Irishmen (for just one example see [}"]Ireland v UK](HUDOC - European Court of Human Rights{“itemid”:["001-57506) [1978] ECHR 1.
Blair hoped to solve all this by incorporating the Convention into domestic law, which was done by the Human Rights Act 1998. (As an aside, he was inspired by Trudeau Snr Partriation of the Canadian Constitution, though old Pierre was very smart and Tony was a duffer).
This permitted individuals to rely on challenges on *domestic * Courts at first instance, rather than go through the entire process and the go to the ECHR.
Of course, like all Blairite legislation, it was horribly drafted. The Troubles ended, just in time for the War on Terror. Soon the British Government started acting against alleged terrorists and other assorted undesirables (read non whites), in terrorism and immigration cases, and they kept up running into the pesky HRA98 and the Convention time and time again.Of course a few cases where some notorious criminals obtained relief from Courts under the HRA, did not help public perception at all.
The UK needs to fix this by getting into the damn 21st century. Have a proper charter of Fundamental rights and a clear procedure for enforcing it. I mean, almost all of it’s non antipodean former colonies have done so and the sky has not fallen.
ETA: Lots of cases, in Straousberg, London, but also Manchester, Aberdeen, Derry have embarrassed May as Home Secretary, like they have embarrassed her predecessors.
Could you be more specific about that issue? Perhaps naively, I thought that providing a domestic route to bring an action under the HRA was creating “a proper charter of Fundamental rights and a clear procedure for enforcing it”.
It’s not as though any alternative form of charter would extract us from the European Convention or Court as applied before the HRA (and presumably does still), or was that your point?
If, on the other hand, some or all of the Supreme Court’s judgements are taken to indicate bad drafting of the law, how is that not going to happen under any other charter?
The ECJ actually blocked it twice, once in 1996 and once in 2014.
And I’d be careful with statements claiming that rights under one instrument “far exceed” those under another. It may be true that, by and large, the level of protection under the CFR tends to be higher than under the ECHR, but it’s always possible that under the case law of the ECJ, an interference with rights is found compatible with the CFR which the Strasbourg court would find incompatible with the ECHR. In addition, the CFR is binding upon Member States only to the extent they apply Union law, whereas the ECHR is binding upon them under all circumstances.
That is always possible :- but on the balance of probabilities, if I encounter a human rights issue that my own government won’t acknowledge, my chances before the ECJ are likely to be better than my chances before the ECHR.
But you need to get to the ECJ first, which is not that easy. If the measure in question is one of the national government, then you need to go to the national courts first and apply for a reference to the ECJ via the preliminary reference procedure, which needs to be ordered by the national court. If that court doesn’T refer the matter to Luxembourg, then you’re stuck.
That doesn’t dispute in any way what I wrote.
It does, because it limits your “chances before the ECJ”, which you wrote about in one of your posts.