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European Yearbookon Human Rights 15

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edited byWolfgang Benedek

Florence Benoît-RohmerMatthias C. Kettemann

Benjamin KneihsManfred Nowak

2014 was a year of transition and controversy in Europe: a new Parlia -ment and new Commission were constituted and Opinion 2/13 of theCourt of Justice of the European Union on the EU’s accession to theEuropean Convention on Human Rights raised serious questions aboutthe coherence and future character of the human rights protectionregimes in Europe.

Across 38 contributions by 61 authors in five sections, the EuropeanYearbook on Human Rights 2015 explains and contextualizes key developments in human rights and provides much needed analysis.

Edited jointly by representatives of four major European human rightsresearch, teaching and training institutions, the Yearbook 2015 coverspolitical and legal developments in the field of the three main organi -zations charged with securing human rights in Europe: EU, Council ofEurope and OSCE, accompanied by a chapter on cross-cutting topics.Now in its seventh edition, the Yearbook remains essential reading foranyone interested in human rights in Europe and the world.

ISBN 978-1-78068-337-9

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Table of Contents

Editors’ Preface .................................................................................................... 7 Abbreviations ...................................................................................................... 17

I Topics of the Year ................................................................ 25

Paul GRAGL The Reasonableness of Jealousy: Opinion 2/13 and EU Accession to the ECHR ............................................................................. 27

Elisabeth STEINER and Ioana RĂTESCU The Long Way to Strasbourg – The Impact of the CJEU’s Opinion on the EU’s Accession to the ECHR ........................................................ 51

Maria BERGER und Clara RAUCHEGGER Opinion 2/13: Multiple Obstacles to the Accession of the EU to the ECHR .................................................................................................... 61

II European Union .................................................................... 77

Wolfgang BENEDEK EU Human and Fundamental Rights Action in 2014 .............................. 79

Hans-Peter FOLZ The Court of Justice of the European Union and Human Rights in 2013-2014 .................................................................................................. 105

Theodor RATHGEBER Human Rights à la Carte: The EU at the UN Human Rights Council in 2014 ......................................................................................... 125

Gosia PEARSON Assessment of the Implementation of the EU Human Rights Strategy and Action Plan as Regard Business and Human Rights .... 135

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Valentina CAGNIN The Potential Role of the Horizontal Social Clause (Article 9 TFEU) on Social Rights Protection ........................................................ 143

Karin LUKAS The EU Charter of Fundamental Rights and the European Social Charter – an Alliance for Social Rights?................................................ 153

Ewelina TYLEC The Influence of Economic Crisis on Fundamental Rights in the European Union: A Step Forward or Step Backwards? ....................... 165

Moritz BIRK and Gerrit ZACH Torture Prevention in the EU – Many Actors, Few Outcomes? ........... 175

Grazia REDOLFI European Union’s Attitude Towards Reproductive Rights: Clear Policy or Double Standards Approach ................................................. 189

Denise VENTURI The Body as an Instrument of Border Control: Remarks on Age Assessment for Unaccompanied Migrant Children ............................. 201

Rocío ALAMILLOS SÁNCHEZ EU Sanctions Policy: A New Human Rights Tool? The Case of Belarus ..................................................................................................... 213

Nicolas HACHEZ and Jan WOUTERS Introducing FRAME: A Large-Scale Research Project on the European Union and Human Rights ...................................................... 227

Katharina HÄUSLER and Alexandra TIMMER Human Rights, Democracy and Rule of Law in EU External Action: Conceptualization and Practice ............................................... 231

Balázs MAJTÉNYI The Nation’s Will as Trump in the Hungarian Fundamental Law ........ 247

Felipe GÓMEZ ISA and María NAGORE CASAS EU Member States Under the Universal Periodic Review of the Human Rights Council: Achievements and Challenges ...................... 261

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Carolina PAVESE, Jan WOUTERS and Katrien MEUWISSEN The European Union and Brazil in the Quest for the Global Promotion of Human Rights: Prospects for a Strategic Partnership .............................................................................................. 279

Viljam ENGSTRÖM and Mikaela HEIKKILÄ Lisbonising Back and Forth? Strategic Planning and Fundamental Rights in the AFSJ ............................................................ 295

Veronika APOSTOLOVSKI, Isabella MEIER, Markus MÖSTL, Klaus STARL and Maddalena VIVONA Measuring Human Rights in EU Practice: Realities and Requirements ........................................................................................... 307

III Council of Europe .............................................................. 317

Brigitte OHMS, Dominik HAIDER, Elisabeth HANDL-PETZ, Martina LAIS and Sebastian SCHOLZ The Jurisprudence of the European Court of Human Rights in 2014: A Year of Consolidation ................................................................ 319

Amalie BANG Recent Developments in Whistleblower Protection in Europe ........... 343

Jonas GRIMHEDEN and Gabriel N. TOGGENBURG Fundamental Rights in EU Criminal Justice Instruments: How to Best Make the Glass Slipper Fit? ........................................................... 355

Adina PORTARU The “Rights and Freedoms of Others” vs. Religious Manifestations: Who Wins at the ECtHR? ............................................. 367

Zane RATNIECE and Kushtrim ISTREFI The Limits of the Strasbourg Court’s Two-Level Harmonization Approach vis-à-vis SC Resolutions in Al-Dulimi .................................. 379

Philip CZECH European Human Rights in International Military Operations ............. 391

Sarah LAMBRECHT The Brexit Scenario: Potential Consequences of a Withdrawal of the UK from the European Convention on Human Rights .................. 407

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IV OSCE .................................................................................... 421

Manfred NOWAK Torture, Enforced Disappearances and Extrajudicial Killings in the OSCE Region ..................................................................................... 423

Eva Katinka SCHMIDT and Vasily VASHCHANKA Judicial Performance Evaluation and Judicial Independence: International Standards for an Appropriate Balance ............................ 435

Irina URUMOVA The Role of Social Inclusion in Preventing Victimization: What We Know and What We Don’t Know ...................................................... 445

Lucile SENGLER Foreign Terrorist Fighters: A Human Rights Perspective .................... 453

Martina ORLANDI Wartime Sexual Violence: The Route to Accountability Between International Justice and Political Commitments ................................ 467

Kateryna RYABIKO and Marcin WALECKI A Right to Political Participation Beyond Elections ............................. 479

Andrei RICHTER The Relationship between Freedom of Expression and the Ban on Propaganda for War ........................................................................... 489

V Cross-Cutting Issues ........................................................... 505

Klaus STARL, Veronika APOSTOLOVSKI and Ingrid NICOLETTI Human Rights Education for the Judiciary: An Assessment of a Decade of Training Experience ............................................................. 507

Tessa SCHREMPF An Economy to Feed (on) Human Beings? Human Rights and the Responsibility to Counteract .................................................................. 517

Patrick HARRIS Prisoners: Disenfranchised with Dignity? Searching the Legal and the Theoretical to Find the Cure for Europe’s Ailing Right to Vote ........................................................................................................... 533

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VI Book Reviews ..................................................................... 551

Biographies ....................................................................................................... 567

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Sarah LAMBRECHT

The Brexit Scenario: Potential Consequences of a Withdrawal of the UK from the European Convention on Human Rights

Table of Contents

A From Criticism to Reform ......................................................................... 407 B Proposal to Withdraw from the Convention ............................................. 410 C Potential Consequences .......................................................................... 412 1 The Domestic Perspective: Deficit in Rights Protection ........................... 412 2 The EU Perspective: Entanglement Remains ......................................... 413 3 The Broader Perspective: Collateral Damage ......................................... 418 D Conclusion ............................................................................................... 420

Keywords

UK, European Convention on Human Rights, Brexit, European Court of Human Rights, European Union

A From Criticism to Reform

There is a clear surge in criticism of the European Court of Human Rights in certain circles of the press,1 the political arena2 and the judiciary3 in the UK. This criticism is primarily centred on ECtHR judgments concerning national security

1 E.g. Sean O’Grady, Whole-life sentences: Why ignoring the European Court of

Human Rights was the only sensible option, The Independent (18 February 2014); Greame Wilson, Victory for evil: European judges declare all-life terms ‘inhumane’, The Sun (10 July 2010); Slack, Unelected euro judges are bringing terror to the streets of Britain, The Daily Mail (18 January 2012) (on Abu Qatada).

2 For an overview, see Roger Masterman, The United Kingdom, in: Sarah Lambrecht, Koen Lemmens and Patricia Popelier (eds.), Shifting the Convention System: Coun-ter-dynamics at the national level (2015) (to be published).

3 E.g. Lord Sumption, The limits of law, 27th Sultan Aelan Lecture (20 November 2013), 6-12; Lord Hoffman, The Universality of Human Rights, Law Quarterly Review 125 (2009), 416-432; Lord Hoffmann, Foreword, in: Michael Pinto-Duschinsky, Bringing Rights back home: making human rights compatible with parliamentary de-mocracy in the UK (2011), 7-8; Mary Arden, Is the Convention Ours?, in: ECtHR (ed.), Dialogue between judges: the Convention is yours (2010), 27-28.

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measures,4 whole life sentences5 and prisoners’ voting rights.6 Largely based on these judgments, a strong foundation of pervading criticism and scepticism has formed in certain circles, based on the idea that the ECtHR is “abusing its func-tion and exceeding its jurisdiction by adopting interpretations of the Convention which its original signatories either expressly rejected or would not have been willing to accept”.7 For some, outrage has become a routine response to even mildly controversial decisions.8

This criticism is not limited to specific judgments, but is widespread and sys-temic. As Bates carefully portrayed, its roots can be found in the history of the relationship between the UK and the Convention.9 At the Convention’s birth, there was little willingness in the UK, as in some other States, to create a human rights instrument that threatened their sovereignty by meddling in internal affairs. The ideological and moral force behind creating an instrument of European rights protection was, however, strong enough to carry along a very sceptical yet highly influential UK.10 Opponents succeeded in demanding significant compromises aimed at diminishing the loss of sovereignty, especially with regard to the right to individual petition and the ECtHR.11 Despite having been its strongest opponent, the UK was the first to ratify the Convention in 1951, on the basis that it would not accept the optional clauses of the right of individual petition and the jurisdic-tion of the ECtHR.12

In the mid-sixties, the Convention’s future seemed quite gloomy13 and the acceptance in 1966 by the UK of both optional clauses was a remarkable turnaround.

4 ECtHR, A a.o. v. the United Kingdom, GC Judgment of 19 February 2009 (confirm-

ing the House of Lords judgment by deciding that the long-term or indefinite deten-tion without trial of foreign nationals under the Anti-Terrorism, Crime and Security Act 2001 was incompatible with Art. 5 ECHR); ECtHR, Chahal v. the United King-dom, GC Judgment of 15 November 1996 (deportation of Sikh separatist to India on grounds of national security would violate Art. 3 ECHR because of a real risk of ill-treatment); ECtHR, Omar Othman (Abu Qatada) v. the United Kingdom, Judgment of 17 January 2012.

5 ECtHR, Vinter a.o. v. the United Kingdom, GC Judgment of 17 January 2012. 6 ECtHR, Hirst v. the United Kingdom (No. 2), GC Judgment of 6 October 2005 (viola-

tion of Art. 3 Prot. 1 ECHR on account of the automatic and discriminate restriction of prisoners’ right to vote); ECtHR, Greens and M.T. v. the United Kingdom, Judg-ment of 23 November 2010 (adoption of pilot judgment procedure); ECtHR, Firth a.o. v. the United Kingdom, Judgment of 12 August 2014; ECtHR, McHugh a.o. v. the United Kingdom, Judgment of 10 February 2015 (a violation was found concerning 1015 prisoners without awarding compensation or legal costs).

7 Expressed by some members in the Commission on a Bill of Rights, A UK Bill of Rights? The choice before us (2012) (Vol. 1), 24. See also, Joint Committee on Human Rights, The Government’s human rights policy (18 December 2013), HC 915.

8 Masterman (2015). 9 Ed Bates, The evolution of the European Convention on Human Rights (2010); Ed

Bates, The UK and Strasbourg: a strained relationship – the long view, in: Katja Ziegler, Elizabeth Wicks and Loveday Hodson (eds.), The UK and European Human Rights: a strained relationship? (2015) (to be published).

10 Bates (2010), 77-78. 11 Ibid., 79-96. 12 Ibid., 102. 13 See in this spirit, Henri Rolin, Has the European Court of Human Rights a future?,

Howard Law Journal 11 (1965) 2, 442-451.

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Even though there was little external political pressure to make such declara-tions, the new Labour administration was receptive to the pleas of outgoing ECtHR President McNair and considered the acceptance to be a relatively harmless gesture that would convey a Euro-friendly stance. Since the UK rights protection was considered superior, the Convention would pose little threat in practice even if it meant a theoretical sovereignty loss.14

However, as early as the early seventies, the UK government expressed frus-tration with the overly creative approach taken by the Commission and the ECtHR to interpreting the Convention.15 For example, in the Golder case, the UK govern-ment pled for a strict and textual interpretation of the Convention, whereas both the Commission and the ECtHR applied a teleological interpretation stressing the Convention’s object and purpose as an effective instrument of human rights protection.16 In 1989, Van Hoof had “the impression that there is increasing dis-satisfaction with various more recent judgments of the Court and, more generally, with the judicial activism which the Court is alleged to practice on occasions”.17 As an example, he pointed to the reaction of the UK government to the Brogan judgment, where the UK government implied that the Court had “overstepped the boundaries of its judicial powers thereby unwarrantedly encroaching upon the domain reserved for the competent national authorities”.18 Following the McCann case in 1995, concerning the killing of three IRA members by the security forces in Gibraltar,19 the UK Government even considered exiting the Convention system but instead opted to advocate reform including widening the margin of appreciation.20

Despite the UK’s influential role in the Convention’s drafting, the UK Govern-ment has continuously had a strained relationship with the Convention system.21 This conflictual relationship seems to stem from a combination of its tradition of parliamentary sovereignty, the absence of strong domestic judicial rights protec-tion, a prevalence of strong euro-scepticism and a perception of superiority of the national legal system. According to Lord Neuberger, “the effect of the Convention seems far more revolutionary in the UK than in other European countries’ in which there is “little danger of the Convention leading to […] public suspicion of judicial aggrandisement […], particularly in the light of their history which gives rise to rather less confidence in the democratic process than that of the UK”.22 It 14 Bates (2010), 183-191. 15 Ibid., 286-309. 16 EComHR, Golder v. the United Kingdom, Report of 1 June 1973, e.g. para. 4; ECtHR,

Golder v. the United Kingdom, Judgment of 21 February 1975, paras. 34-36. 17 Fried van Hoof, The future of the European Convention on Human Rights, NQHR 7

(1989) 4, 453. 18 Ibid., 455. See ECtHR, Brogan a.o. v. the United Kingdom, Plenary Judgment of

29 November 1988 (detention without charge under Prevention of Terrorism Act). 19 ECtHR, McCann a.o. v. the United Kingdom, GC Judgment of 27 September 1995. 20 Editorial, Reform of the court: the Foreign Office position paper, EHRLR 3 (1996),

229-232; T. Shaw, Major weighs case for leaving Euro-court, Daily Telegraph (25 September 1996); Frances Gibb, Britain calls for reforms to court of human rights, The Times (25 November 1996); Clare Dyer, Fury over Howard outburst: rela-tionship hits new low after Home Secretary accuses European courts of protecting criminals, The Guardian (17 January 1997).

21 For an overview, see Bates (2015). 22 Lord Neuberger, The role of judges in human rights jurisprudence: a comparison of

the Australian and UK experience (8 August 2014), www.supremecourt.uk/docs/ speech-140808.pdf (11 February 2015), para. 17.

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is in this setting that several politicians feel that changing the relationship between the UK and the Convention system through legal reform is absolutely necessary.

B Proposal to Withdraw from the Convention

Recently, several proposals have been made both at the national level and European level to lessen the European Court of Human Rights’ influence: such as the adoption of a home-grown Bill of Rights,23 repealing the Human Rights Act 1998 including the obligation to interpret legislation in a Convention-conform manner and take into account the ECtHR case law,24 making the ECtHR merely an advisory body,25 remaining Party to the ECHR without being subject to the ECtHR’s jurisdiction,26 temporary withdrawing in order to obtain a reservation27 and reforming the Convention system to ensure a wider margin of appreciation granted to national authorities.28 With the Conservative Party unexpectedly ob-taining an absolute majority in the May 2015 general election, the chance of the proposal to “scrap the Human Rights Act and introduce a British Bill of Rights” 29 coming into being, is more real than ever.30 This commitment dates back from their 2010 Manifesto.31 However, due to the coalition government with the Liberal Democrats, who were in full support of the Human Rights Act, this never materi-alized. Instead a Commission on a Bill of Rights was established that concluded its work at the end of 2012 with a vast report revealing the very diverse and often-conflicting opinions of its members.32

The push for reform of the Convention system instigated by the UK became

23 See e.g. Sarah Lambrecht, Bringing rights more home: Can a home-grown UK Bill of

Rights lessen the influence of the European Court of Human Rights?, German Law Journal 15 (2014) 3, 407-436. See also, The Conservative Party Manifesto 2015 (2015), https://s3-eu-west-1.amazonaws.com/manifesto2015/ConservativeManifesto 2015.pdf (14 May 2015), 58-59.

24 Ibid. 25 See e.g. Protecting human rights in the UK: the Conservatives’ proposals for chang-

ing Britain’s human rights laws (2014), www.conservatives.com/~/media/files/ down-loadable%20Files/human_rights.pdf (11 February 2015).

26 Edward Faulks and Jonathan Fisher, Unfinished business, in: Commission on a Bill of Rights (2012), 188.

27 Ed Bates, Avoiding legal obligations created by human rights treaties, ICLQ 57 (2008) 4, 779-786; Liberty, Denunciation of the ECHR: Legal opinion on the lawful-ness of government proposal to withdraw from the ECHR and re-ratify with reserva-tions as part of its asylum seeker strategy, London (2003).

28 See e.g. the UK Draft Brighton Declaration on the future of the European Court of Human Rights, www.theguardian.com/law/interactive/2012/feb/28/echr-reform-uk-draft (11 February 2015).

29 The Conservative Party Manifesto 2015 (2015), https://s3-eu-west-1.amazonaws.com/ manifesto2015/ConservativeManifesto2015.pdf (14 May 2015), 59.

30 However, it remains very tricky, see e.g. Joshua Rozenberg, Why human rights reform could trip up Michael Grove, The Guardian (11 May 2015).

31 The Conservative Party Manifesto 2010 (2010), www.conservatives.com/~/media/files/ activist%20centre/press%20and%20policy/manifestos/manifesto2010, 79.

32 Sarah Lambrecht, Bringing rights more home: Can a home-grown UK Bill of Rights lessen the influence of the European Court of Human Rights?, German Law Journal 15 (2014) 3, 408-411.

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very apparent at the Brighton Conference in 2012 as part of the UK’s six-month chairmanship of the Committee of Ministers of the Council of Europe. The leaked UK draft of the Brighton Declaration heavily focused on reinforcing the power of States and weakening the Court’s jurisdiction with regard to several issues. However, the end result was meagre for those countries, in particular the UK, attempting to translate criticism into concrete reform proposals. Almost all the non-binding statements that changed the relationship between the national level and the ECtHR were either rephrased or deleted and the controversial new ad-missibility criterion33 did not make it into the Declaration. Nevertheless, several statements in the Brighton Declaration did suggest that the ECtHR should rein in its scrutiny of national authorities. The only real achievement was setting a re-form process in order that would include the principle of subsidiarity and the margin of appreciation expressly in the Preamble (Protocol 15).34 As the ratifica-tion process is still on going, it will take quite some time to see the potential ef-fects of Protocol 15 unfold in the ECtHR case law.35 Contrarily, the other reform proposal stemming from the Brighton Declaration, (optional) Protocol 16, will most likely increase the impact of the ECtHR as it enables supreme domestic courts to ask the ECtHR for an advisory opinion with regard to interpreting the Convention.

This contribution, however, does not examine the above-mentioned proposals and reforms, but instead focuses on the most drastic proposal: the withdrawal of the UK from the Convention. The only (temporary) exit that has ever taken place in the Convention’s history was by Greece in 1969 during the military dictator-ship. When it was evident that Greece would loose a vote on suspension, it de-nounced its membership of the Council of Europe.36 When democracy was re-stored, Greece rejoined the Council of Europe and was readmitted to the Convention in 1974.

Former ECtHR President Bratza gloomily stated that “the threat that the United Kingdom will withdraw from the Convention system, in whose creation it played such a leading and distinguished role, is more real today than it has ever been”.37 This threat is even more real with the Conservative Party having ob-tained, against all polling predictions, an absolute majority at the May 2015 general election. Their 2015 Manifesto does not include such commitment to withdraw from the Convention system, but it does promise to scrap the Human Rights Act and introduce a British Bill of Rights. This will, according to the Conservative 33 According to which an application is inadmissible if it is the same in substance as a

matter that has been examined by a national court taking into account the rights guaranteed by the Convention. Unless the ECtHR considers that: (1) the national court clearly erred in its interpretation or application of the Convention rights or (2) the application raises a serious question affecting the interpretation or application of the Convention. See UK Draft Brighton Declaration on the future of the European Court of Human Rights, para. 23 c).

34 For an overview, see Sarah Lambrecht, Reforms to lessen the influence of the European Court of Human Rights: A new strategy, European Public Law 21 (2015) 2, 270-282.

35 For an analysis of the potential impact, see ibid, 279-282. 36 James Becket, The Greek case before the European Human Rights Commission,

Human Rights 1 (1970-71) 1, 107. 37 Nicolas Bratza, Living instrument or dead letter: the future or the European –

Convention on Human Rights, EHRLR (2014) 2, 116.

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Party, “break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”38 As this analysis offers a rather simplistic and unrealistic inference,39 politicians might look for a cleaner cut with the Convention system. On several occasions, senior Conservative politicians have suggested that with-drawing from the Convention is a possibility. Following the Abu Qatada case, in which the Strasbourg Court ruled that there would be a violation of Article 6 ECHR if Abu Qatada would be extradited to Jordan given the real risk of the admission of evidence obtained by torture at his retrial in Jordan, UK Prime Min-ister David Cameron said he would explore the possibility of temporarily with-drawing from the Convention.40 Similar statements were made by Cameron41 and Justice Secretary Grayling42 following the Vinter case. In this case, the Grand Chamber held that for a life sentence to remain compatible with Article 3 ECHR there must be both a prospect of release and a possibility of review and ruled that the UK applicants did not have such guarantees.43 Conservative Minister of State for Justice Faulks suggested that “[i]f … the Tories govern with a majority they will bring in legislation making the rulings of Strasbourg advisory”. If this would not change the relationship with the Convention system, he stated that a Conservative government would withdraw from the Convention.44

This contribution gives a brief overview of the potential consequences of a withdrawal by the UK from the Convention from three perspectives: the domes-tic, EU and international perspective.

C Potential Consequences

1 The Domestic Perspective: Deficit in Rights Protection Whenever withdrawing from the Convention system was uttered as a possibility, opponents always stressed the Convention’s importance of filling the vacuum of a home-grown Bill of Rights. However, some of those currently in favour of with-drawing from the Convention system (and scrapping the Human Rights Act 1998 –

38 The Conservative Party Manifesto 2015 (2015), 59. 39 Sarah Lambrecht, Bringing rights more home: Can a home-grown UK Bill of Rights

lessen the influence of the European Court of Human Rights?, German Law Journal 15 (2014) 3, 407-436; Sarah Lambrecht, Reforms to lessen the influence of the European Court of Human Rights: A new strategy, EPL (2015), 259-267.

40 Nicholas Watt and Alan Travis, UK may withdraw from European rights convention over Abu Qatada, The Guardian (24 April 2013). Similar statement made by Theresa May in Alan Travis, Conservatives promise to scrap HRA after next election, The Guardian (30 September 2013).

41 Nicholas Watt and Alan Travis, Tory ministers condemn ECHR ruling on whole-life prison sentences, The Guardian (9 July 2013).

42 HC Deb (4 February 2014) (Vol. 575), Col. 124. 43 ECtHR, Vinter a.o. v. the United Kingdom, GC Judgment of 9 July 2013. 44 The JUSTICE Debate 2015 (14 April 2015), http://justice.org.uk/the-justice-debate-

2015; see also Mark Elliot, Are the Conservatives still contemplating withdrawal from the ECHR?, Public Law for Everyone (23 April 2015), http://publiclawfor every-one.com/2015/04/23/are-the-conservatives-still-contemplating-withdrawal-from-the-the-echr.

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its duplicate at the national level) aim to circumvent this issue by combining a withdrawal with the introduction of a home-grown Bill of Rights. As signalled by two members of the UK Commission on a Bill of Rights, there is “the real possi-bility that some people support a UK Bill of Rights as a path towards withdrawal from the European Convention”.45 The risk of decoupling the UK from the Con-vention combined with the adoption of a Bill of Rights with diminished protection, led them to conclude that the arguments against such a Bill remain more per-suasive, at least for now.46 Two other members on the Commission on a Bill of Rights did precisely that by arguing that “there are strong arguments that the cause of human rights, both in the UK and internationally, would be better served by withdrawal from the Convention and the enactment of a domestic Bill of Rights”.47

Even if such an approach would be taken, it would of course not change the big impact a withdrawal from the Convention system would cause to rights pro-tection in the UK. First, UK citizens would no longer be able to seek individual justice for violations to Convention rights committed by national authorities. Thus, the possibility of external control would be erased. Second, they would be guar-anteed weaker rights protection, even if a home-grown Bill of Rights would be enacted to replace the Human Rights Act 1998. Through more narrowly defined rights, a greater possibility of limiting certain rights and a curtailment of judicial review over those rights (especially concerning rights conform interpretation of legislation), these proposals would overall result in diminished rights protection.48

Furthermore, withdrawal would call into question the devolution settlements for Wales, Scotland and Northern Ireland, which enshrine Convention rights as governing all their actions. In the case of Northern Ireland, the Convention is part of the Good Friday Agreement, an international treaty. Withdrawal would thus create many legal obstacles relating to devolution and spark much political discord.49

2 The EU Perspective: Entanglement Remains The (growing) connection between the EU and the Convention system further complicates a complete disentanglement from the Convention system. Several issues arise from the EU perspective. Three issues are consecutively discussed: whether adherence to the Convention is a condition of EU membership, whether UK’s disentanglement from the Convention system could be complete including matters that fall within the scope of EU law and the effects of the accession of the EU to the Convention.

Following the UK Government’s suggestion that it would consider withdrawing from the Convention and the ECtHR’s jurisdiction, a 2014 note by the Library of

45 Commission on a Bill of Rights (2012), 32. 46 Ibid. 47 Edward Faulks and Jonathan Fisher, Unfinished business, ibid., 189. 48 See e.g. Martin Howe, A UK Bill of Rights, ibid., 192-216; Anthony Speaight, Mech-

anisms of a UK Bill of Rights, ibid., 257-277; (the already withdrawn) Human Rights Act 1998 (Repeal and Substitution) Bill, www.publications.parliament.uk/pa/bills/ cbill/2012-2013/0031/2013031.pdf (11 February 2015).

49 Dominic Grieve, Why Human Rights should matter to Conservatives (3 December 2014), 25. See also, Pinto-Duschinsky (2011), 51; Anthony Speaight, Devolution options, in: Commission on a Bill of Rights (2012), 243-256.

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the House of Commons was issued to answer the question: is adherence to the ECHR a condition of EU membership?50 The fact that such a question is raised, reveals that its answer is fraught with ambiguity. Some, especially those in fa-vour of a withdrawal, state that this question should obviously be answered neg-atively, since there is no express legal obligation included in the EU Treaties that obliges EU Member States to be a Party to the Convention.51 Article 2 TEU merely 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” and Article 6 para. 3 TEU stipulates that fundamental rights, as guaran-teed by the ECHR and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.

As regards the accession process, Article 49 TEU clarifies that “any Europe-an State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union”. During Bulgaria’s accession process to the EU, the European Commission stated that since the ECHR and its main additional protocols, under (now) Article 6 TEU, is part of the acquis, any State whishing to join the European Union must first have ratified the said texts.52 Does this imply that existing states have to remain Party to the Con-vention system? According to Klug and Singh, this indeed implies that being a Party to the Convention is a legal requirement of the EU. Consequently, Klug concluded that the UK could not remain a Member of the EU if it left the Conven-tion.53 Falconer, on the other hand, considered it in practice not possible to be a member of the EU and to have left or denounced the ECHR, despite the exist-ence of some doubt due to the absence of an express condition.54

In 2006, MEP Van Orden asked whether anything in the EU Treaties would forbid a withdrawal.55 In its response, the European Commission stressed the entanglement between the EU and the Convention system:

“Respect for fundamental rights as guaranteed by the European Conven-tion on Human Rights is an explicit obligation for the Union under Article 6 para. 2 of the Treaty on European Union, and the Court of Justice has held that the Convention is of especial importance for determining the fun-damental rights that must be respected by the Member States as general principles of law when they act within the scope of Union law. The rights secured by the Convention are among the rights guaranteed by the Char-

50 Vaughne Miller, Is adherence to the European Convention on Human Rights a con-

dition of European Union membership? (2014), SN/IA/6577. 51 For example, Miller (2014), 4; Jonathan Fisher in House of Commons, Select Commit-

tee on Constitutional Affairs (31 October 2006), www.publications.parlia ment.uk/ pa/cm200506/cmselect/cmconst/1703/6103102.htm (11 February 2015), Q41; Pinto-Duschinsky (2011), 52-55; Dominic Grieve, It’s the interpretation of the Human Rights Act that’s the problem – not the ECHR itself, Conservative Home (14 April 2009), www.conservativehome.com/platform/2009/04/dominic-grieve-2.html (11 February 2015).

52 Commission Opinion on Bulgaria’s application for membership of the European Union, Brussels (1997), DOC/97/11, 15.

53 House of Commons, Select Committee on Constitutional Affairs (31 October 2006), www.publications.parliament.uk/pa/cm200506/cmselect/cmconst/1703/6103101.htm (11 February 2015), Q18-19; Q63.

54 Ibid., Q96. 55 Written question E-5000/2006, www.europarl.europa.eu/sides/getDoc.do?type=

WQ&reference=E-2006-5000&language=EN (11 February 2015).

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ter of Fundamental Rights of the European Union. In the negotiations for the accession of new Union members, respect for the Convention and the case-law of the European Court of Human Rights is treated as part of the Union acquis.”56

Yet, the Commission concluded quite ambiguously that a “Member State deciding to withdraw from the Convention and therefore no longer bound to comply with it or to respect its enforcement procedures could, in certain circumstances, raise concern as regards the effective protection of fundamental rights by its authori-ties”.57 The Commission stated that “such a situation, which [it] hopes will remain purely hypothetical, would need to be examined under Articles 6 and 7 of the Treaty on European Union”.58 Article 7 TEU compromises a sanctions mecha-nism against Member States which violate in a serious and persistent manner the values listed in Article 2 TEU and an early warning system in cases where there is a clear risk of such a serious breach.

The Commission did thus not outright assert that withdrawal from the Con-vention would be in breach with an EU legal obligation. Despite its lack of clarity, the European Commission does not appear to find a withdrawal in se contrary to the EU treaties, but rather warns of the potential issues concerning effective rights protection as the Convention and the ECtHR case law is considered to be part of the Union acquis. Also, the EU Commission leaves undetermined if a withdrawal from the Convention system would compromise a serious and persis-tent breach of Article 2 TEU triggering the sanctions mechanism or early warning system in Article 7 TEU.

In conclusion, no EU authority has explicitly confirmed that being a Party to the Convention is a condition for continued EU membership. Nevertheless, with-drawal would clearly go against the ratio legis of Articles 4 and 6 TEU and could in practice raise issues concerning effective rights protection. However, it is questionable if this would be sufficient to lead up to an Article 7 TEU procedure.

As opposed to the issue of EU membership, no one disputes that within the scope of EU law, the ECHR combined with the EU Charter will remain pivotal both at the domestic and the European level irrespective of a withdrawal from the Convention. A complete disentanglement from the Convention system is thus only possible in combination with a Brexit from the EU, which some have rec-ommended.59

First, fundamental rights as guaranteed by the ECHR constitute general prin-ciples of EU law.60 Second, the EU Charter has a strong link with the ECHR, as it borrows about half of its rights from it. Moreover, the EU Charter includes a pro-vision to maintain consistency between the rights in the EU Charter and the ECHR and to ensure that EU law can (only) provide more extensive protection.61 56 Answer given by Mr. Frattini on behalf of the Commission, www.europarl.europa.eu/

sides/getAllAnswers.do?reference=E-2006-5000&language=EN (11 February 2015). See also, answers to written questions E-001805/2011 and E-001599/2014.

57 Ibid. 58 Ibid. 59 See e.g. Library House of Commons, Leaving the EU, Research Paper 13/42 (2013). 60 Art. 6 para. 3 TEU. 61 Art. 52 para. 3 EU Charter. See also Catharine Barnard, The ‘opt-out’ for the UK and

Poland from the Charter of Fundamental Rights: Triumph of rhetoric over reality?, Stefan Griller and Jacques Ziller (eds.), The Lisbon Treaty (2008), 259; Sionaidh

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The Explanations to Article 52 para. 3 EU Charter stress that “[i]n any event, the level of protection by the Charter may never be lower than that guaranteed by the ECHR”. Article 52 para. 3 also stipulates that in so far as its rights corre-spond to those in the Convention, the meaning and scope of those rights shall be the same as laid down by the said Convention. With regard to this specification, the CJEU has ruled that the meaning and scope of those rights are to be the same as those laid down in the ECHR, as interpreted by the ECtHR case law.62

Since the EU Charter has the same legal value as the Treaties, it forms part of EU primary law and is enforceable before national courts and the CJEU when EU law issues are at stake.63 Within the scope of EU law, the influence of the Convention system will thus remain strong despite withdrawal.64 Notwithstand-ing, the CJEU has ruled that “Article 6 para. 3 TEU does not govern the relation-ship between the ECHR and the legal systems of the Member States and nor does it lay down the consequences to be drawn by a national court in case of conflict between the rights guaranteed by that convention and a provision of national law”. Article 6 para. 3 TEU therefore does “not require a national court, in case of conflict between a provision of national law and the ECHR, to apply the provisions of that convention directly, disapplying the provision of national law incompatible with the convention”.65 Also, the CJEU stated that

“whilst, as Article 6 para. 3 TEU confirms, fundamental rights recognised by the ECHR constitute general principles of the European Union’s law and whilst Article 52 para. 3 of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law”.66

Important to stress is that Protocol No. 30 does not in any way exempt the UK from its obligations under the EU Charter.67 Thus, it cannot be considered a

Douglas-Scott, Fundamental Rights not Euroscepticism: Why the UK should em-brace the EU Charter, University of Oxford Legal Research Paper Series (2014), http://ssrn.com/abstract=2528768 (11 February 2015), 11; Steve Peers and Sacha Prechal, Article 52, in: Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward (eds.), The EU Charter of Fundamental Rights: A Commentary (2014), 1490-1494.

62 CJEU, C-400/10, J McB, Judgment of 5 October 2010, para. 53; CJEU, C-256/11, Dereci, GC Judgment of 15 November 2011, para. 70 (regarding Art. 7 EU Charter and Art. 8 para. 1 ECHR).

63 Art. 52 para. 3, EU Charter. 64 For an overview, see Sionaidh Douglas-Scott, A tale of two courts: Luxembourg,

Strasbourg and the growing European human rights acquis, CMLR 43 (2006), 629-665. 65 CJEU, C-571/10, Kamberaj, GC Judgment of 24 April 2012, paras. 62-63 (see also

Giuseppe Bianco and Giuseppe Martinico, Dialogue or disobedience? On the do-mestic effects of the ECHR in light of the Kamberaj decision, EPL 20 (2014) 3, 435-450); CJEU, C-617/10, Fransson, GC Judgment of 26 February 2013, para. 44.

66 CJEU, C-617/10, Fransson, GC Judgment of 26 February 2013, para. 44. 67 CJEU, C-411/10 and C-493/10, NS, GC Judgment of 21 December 2011, paras. 116-

122; Douglas-Scott (2014), 5-6; Anthony Arnull, Protocol (No. 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom, in: Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward (eds.), The EU Charter of Fundamental Rights: A Commentary (2014), 1599.

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legally binding “opt-out”, as framed by then Prime Minister Tony Blair.68 First, Article 1 para.1 affirms that the EU Charter does not extend the ability of the CJEU or any domestic court to find that laws (etc.) are inconsistent with the Charter. This is similar to Article 51 para. 2 EU Charter, which stipulates that the EU Charter does not establish any new power or task for the Community or the Union, or modify the powers and tasks defined by the Treaties. Second, Article 1 para. 2 stipulates that Title IV “Solidarity” of the EU Charter creates no justiciable rights applicable to the UK except in so far as the UK has provided for such rights in its national law. A comparable statement can be found in Article 52 para. 5 EU Charter.69 However, its effects may be more far-reaching than those of Article 1 para. 1, since it could imply that even if a court ruled that a provision of Title IV of the EU Charter offers a subjective right, those rights could not be invoked in or against the UK unless the UK has provided for such a right in its domestic law.70 Since Title IV was not relevant in NS, the CJEU did not rule on its interpreta-tion.71 Third, Article 2 provides that where the Charter refers to national laws and practices, it shall only apply to the UK to the extent that its rights or principles are recognised in the UK’s laws or practices. This provision reinforces Article 52 paras. 4 and 6 of the EU Charter.72

Even though Protocol No. 30 cannot be considered to be an “opt-out” from the Charter, it is feared that it will create a chilling effect on the interpretation of the EU Charter.73 Because of the realisation that the EU binds the UK when it acts in the scope of EU law,74 the House of Commons European Scrutiny Com-mittee has recently recommended an extreme measure: to exclude, at the least, the applicability of the EU Charter in the UK.75 However, such legislation would be in clear violation of EU law, as, of course, the UK cannot unilaterally alter EU law.76

Accession of the EU to the ECHR would of course complicate matters even further, as it would complete the linkage between the EU and the Convention system. To illustrate potential complications, the co-respondent mechanism is entirely built on the idea that both the EU and its Member States are Party to the Convention. The co-respondent mechanism introduces a system of shared re-

68 HC Deb (25 June 2007) (Vol. 462), cols. 37-39. 69 Patrick Layden and Tobias Lock, United Kingdom, in: Julia Laffranque (ed.), The

protection of fundamental rights post-Lisbon (2012), 829-830. 70 Arnull (2014), 1603-1610. 71 Although, see Opinion of Advocate General Trstenjak, C-411/10 and C-493/10

(22 September 2011), paras. 171 and 173. 72 For an overview, see Barnard (2008), 257-281; Arnull (2014), 1595-1612. 73 Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law (2014),

288. 74 CJEU, C-617/10, Fransson, GC Judgment of 26 February 2013; CJEU, C-206/13,

Siragusa, Judgment of 6 March 2014. 75 House of Commons European Scrutiny Committee, The application of the EU Char-

ter of Fundamental Rights in the UK: a state of confusion (2014), HC 979, para. 72. See also Conservative Party, Protecting Human Rights in the UK (2014): ‘[we] are clear that our relationship with the EU will be renegotiated in the next parliament, and if there is anything in that relationship which encroaches upon our new human rights framework, then that is something it will be open for us to address as part of the renegotiation.’

76 Douglass-Scott (2014), 16.

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sponsibility by allowing the EU to become a co-respondent to proceedings initi-ated against one or more of its Member States when the alleged violation is rooted in primary or secondary EU law and by permitting EU Member States to become co-respondents to proceedings initiated against the EU when the alleged violation is grounded in primary EU law.77 This would not be possible when the UK would no longer be Party to the Convention. In cases related to EU law, the UK could no longer intervene after withdrawal, neither as a co-respondent nor as a third-party intervener, as only High Contracting Parties or any person (not State) concerned can intervene as a third party.78 This would recreate a gap in participation, accountability and enforceability, which the EU accession to the ECHR pursues to fill.79 Following the negative Opinion 2/13 issued on 18 De-cember 2014 by the CJEU,80 accession is unlikely to occur in the near future. Notwithstanding, accession remains a legal obligation for the EU as expressed in Article 6 TEU. Thus, the bizarre situation could arise, where the UK, having with-drawn from the Convention, would be called upon to approve the EU’s accession to the Convention.

3 The Broader Perspective: Collateral Damage Former Attorney General Grieve (Conservative Party) stressed that withdrawal would result in “reputational damage to the UK’s status as a country at the fore-front of the promotion of the rule of law and Human Rights”81 and “the UK be-coming a “pariah state” comparable to Belarus”.82 Most likely because of his commitment to the Convention system, Grieve was dismissed as Attorney Gen-eral in 2014 and replaced by Wright who is not opposed to a withdrawal scenario.83 Similarly, former ECtHR President Bratza emphasized that harm done to the UK’s international standing by the abandonment of the Convention system would be very considerable.84

77 Art. 3 paras. 2-3, Draft Accession Agreement. For a detailed analysis see e.g. Paul

Gragl, A giant leap for European human rights? The final agreement on the Europe-an Union’s accession to the European Convention on Human Rights, CMLR 51 (2014) 13, 31-40; Tobias Lock, End of an Epic? The Draft Agreement on the EU’s Accession to the ECHR, Yearbook of European Law (2012), 165-181.

78 Art. 36 ECHR. 79 Draft Accession Agreement Explanatory Report, para. 39. 80 For an overview, see Maria Berger and Clara Rauchegger, Opinion 2/13: Multiple

Obstacles to the Accession of the EU to the ECHR, in this volume, 61; Elisabeth Steiner and Ioana Ratescu, The Long Way to Strasbourg – The Impact of the CJEU’s Opinion on the EU’s Accesion to the ECHR, in this volume, 51; and Paul Gragl, The Reasonableness of Jealousy: Opinion 2/13 and EU Accession to the ECHR, in this volume, 27; Sarah Lambrecht, The sting is in the tail: CJEU Opinion 2/13 objects to draft agreement on accession of the EU to the Convention on Human Rights, EHRLR (2015) 2, 185-198.

81 Dominic Grieve, Parliament and the judiciary, BPP Law School (25 October 2012). 82 Holly Watt, Britain could become Belarus if it abandons human rights legislation,

warns Attorney General, The Telegraph (9 October 2012). 83 Oli Scarff, Challenge for new law officers on road to Strasbourg, The Telegraph

(17 July 2014). 84 Bratza (2014), 127. Similarly, Geraldine Van Bueren, Don’t scapegoat Europe’s

court of human rights, The Guardian (21 February 2011).

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Not only would the UK suffer reputational damage, the Convention system as a whole and the protection of human rights in the newer democracies in Europe would be severely harmed by the UK’s withdrawal.85 Faulks and Fisher, who are in favour of a withdrawal, dispute that UK’s withdrawal from the Convention would weaken rights protection in Europe. They conclude that it “is not defeatist but rather a statement of political reality that the UK’s continuing membership of the Convention is not a matter which weighs heavily with these countries, or any others”.86 However, even Cameron stated that the “act of leaving the ECHR would send a message to all those countries that we encouraged to sign up to it that you cannot have rights and security at the same time”.87

The fact that compliance with the Convention obligations by the established democracies does matter was illustrated by Bratza with the corrosive effect the failure to implement the Hirst judgment has had in Russia and Ukraine. He con-cludes that “at a time when we are already beginning to witness an erosion of the hard-won Convention standards in many parts of the Continent, the damage done by the withdrawal of support for the system by one of its key players would be simply incalculable”.88 Grieve illustrates the negative effects of UK’s position by showing that it is being used as a justification by Russia to try to procrastinate implementing judgments, by Venezuela for ignoring obligations under the American Convention on Human Rights arising prior to its denunciation of it in 2012 and by the president of Kenya over the jurisdiction of the ICC.89

Another example can be found in relation to Hungary, where Prime Minister Orban endorsed the criticism voiced by the United Kingdom in a radio interview in 2014 stating: “They [England] do and say things for which someone would be stoned in Hungary, while there it is accompanied by cheering of the English public and media. Prime Minister Cameron delivered a speech, maybe 10 days ago, where he said things half of which I do not dare to say, although I believe in them. I want to say, it is worth paying attention to England.”90 Also, the criticisms voiced in the UK, including the proposal to withdraw, (temporarily) ignited a heated debate in the Netherlands about the future of the Convention system.91

85 Bratza (2014), 127. 86 Edward Faulks and Jonathan Fisher, Unfinished business, in Commission on a Bill

of Rights (2012) 190. See similarly, Conservative MEP Daniel Hannan, Britain should withdraw from the European Convention on Human Rights, The Telegraph (12 February 2011).

87 David Cameron, Balancing freedom and security – a modern British Bill of Rights, Centre for Policy Studies (26 June 2006).

88 Bratza (2014), 128. 89 Grieve (2014), 26-27. 90 Translation by Eszter Polgari, Hungary, in: Sarah Lambrecht, Koen Lemmens and

Patricia Popelier (eds.), Shifting the Convention System: Counter-dynamics at the nation-al level (2015) (to be published), referring to a radio interview, www.kormany.hu/hu/ a-miniszterelnok/hirek/az-emberek-nagy-resze-folytatna-az-egyseg-politikajat (11 Feb-ruary 2015).

91 For an overview, see Janneke Gerards, Netherlands, in: Sarah Lambrecht, Koen Lemmens and Patricia Popelier (eds.), Shifting the Convention System: Counter-dynamics at the national level (2015) (to be published); Sarah Lambrecht, Reforms to lessen the influence of the European Court of Human Rights: A new strategy, EPL (2015), 267-270.

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Some argue that such significant collateral damage should not be the primary concern. Pinto-Duschinsky argues that even if the UK withdrawal would be a nuclear explosion that would fatally undermine the Convention system leading to similar moves by countries such as Russia, it is a matter of debate how much weight such concerns need to be given. He finds that the predominant consid-eration should be the welfare and integrity of the UK’s system of justice and democracy.92 Hopefully, significant weight will be given to these concerns, as the withdrawal of the UK would result in the entire supranational structure of the Convention system losing one of its foundational stones.

D Conclusion

The post-May 2015 election developments will reveal if the threats to leave the Convention system made by several Conservative members of government, including Prime Minister Cameron, are idle threats – merely part of a political rhetoric to win UKIP voters, satisfy the Euro-sceptic current within the Conserva-tive Party or pressure the ECtHR into offering a broader margin of appreciation and delivering restrictive judgments – or a truly realistic prospect. The unex-pected absolute majority of the Conservative Party in the House of Commons following the May 2015 general election makes the withdrawal scenario in any case a possible prospect.

Throughout the history of UK’s strained relationship with the Convention sys-tem, similar threats have recurred but have never been followed through. The domestic complexities of withdrawal cannot be underestimated. Withdrawal would call into question the devolution settlements for Wales, Scotland and Northern Ireland instigating political instability. One can wonder whether there is sufficient political willingness to risk such developments. Furthermore, the do-mestic consequences for rights protection would be significant. With regard to matters that fall within the scope of EU law, the entanglement with the Conven-tion system would remain and, if the EU accession to the ECHR solidifies, will grow much stronger. In relation to the Convention system, the withdrawal of the UK would result in the entire supranational structure of the Convention system loosing one of its foundational stones. The collateral damage would be signifi-cant, if not, disastrous, potentially creating a corrosive effect throughout certain European states.

92 Pinto-Duschinsky (2011), 65.