Can the UK retain its membership in the EU if it withdraws from the ECHR?
By Dr. Noelle Quenivet. ILHRU. UWE, Bristol.
In the past few weeks most of the discussion surrounding Theresa May’s attacks on the European Convention on Human Rights (ECHR) rightly focused on the importance of this legal instrument for the protection of human rights. Yet, a number of individuals have questioned the impact of the UK’s withdrawal from the ECHR on its membership in the European Union. In other words can the UK retain its membership in the European Union if it withdraws from the ECHR? The simple answer is yes but the UK will have to ensure that domestically it has established a strong and effective mechanism for the protection of human rights.
First, the Lisbon Treaty does not require States to observe human rights law generally and the ECHR more specifically. The only references in the Treaty of European Union (TEU) to State’s human rights law duties can be found in the preamble, where States confirm their “attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law” (fourth recital of the preamble) and in Article 2 TEU which, similarly, states that “The values [of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights] are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” Yet, this is a reaffirmation of States’ abidance to human rights law, rather than an obligation upon them to comply with human rights law. Even if a teleological interpretation were to be made of the aforementioned provisions implying EU Member States’ obligation to comport with human rights law, compliance can be achieved without being a party to the ECHR. Indeed, an effective constitutional bill of rights might well do the job.
Second, only States that wish to join the EU must demonstrate that they comport with human rights law. Indeed, Article 49(1) (initially known as the Copenhagen criteria (para 7(A)(iii))) requires applicant States to show that they respect a number of values enumerated in Article 2 (“respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”) and are committed to promoting them. The best way to demonstrate compliance with human rights law is undoubtedly to be a party to the ECHR. Yet, the TEU does not require States that are already party to the TEU to have ratified the ECHR. In other words, the UK would remain a member of the EU if it were to withdraw from the ECHR.
Third, an easily made mistake is to attribute the obligations of the EU under international law and the TEU to its Member States. As the EU has legal personality on the international level (Article 47 TEU) it has its own obligations and rights in pursuance of international law: Article 3(5) enjoins the EU to contribute to the protection of human rights and this is reiterated in Article 21 TEU, and, most importantly, Article 6 indubitably compels the EU to comport with the Charter of Fundamental Rights of the European Union of 7 December 2000 that is now imbued with same legal value as the treaties. In a similar vein, it is often argued that when the EU accedes to the ECHR (Article 6(2) TEU) the UK will be bound by the ECHR. Again, this is incorrect as the EU, as a separate legal entity, will be obligated by the ECHR but not the individual Member States of the EU. That being said, because of the nature of EU acts it is indeed possible that if an EU act infringes the rights protected by the ECHR Member States might directly and indirectly violate the ECHR too. For example, in the case of a regulation which is of direct applicability (Article 288 of the Treaty on the Functioning of the European Union), Member States will have indirectly violated the ECHR. In the case of a directive, which individual Member States have to implement (Article 288 TFEU) and may do so with the same flaw, Member States may be directly in violation of the ECHR.
A fourth and certainly more potent argument is that EU Member States are constrained by the general principles of EU law, which include human rights, by virtue of Article 6(3) TEU which reads “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.” Based on the doctrine of supremacy of EU law, general principles, which are a primary source of EU law, prevail over national legislation. The Court of Justice of the European Union (CJEU) has clearly indicated in Mangold (Case C‑144/04, Mangold v Helm  ECR I‑9981) and Kücükdeveci (Case C-555/07 Kücükdeveci v Swedex GmbH & Co KG,  ECR I-365) that domestic legislation that falls short of the general principle of non-discrimination must be set aside or interpreted in the light of the principle by the domestic courts. As a result States are bound by human rights law via the general principles of EU law (See Case 4/73 Nold v Commission  ECR 491, para 13). But what is the content of the human rights protected by the general principles of EU law? It is likely that these principles mirror the guarantees enshrined in the ECHR as the ECHR is specifically mentioned in Article 6(3) TEU and the constitutional traditions common to the Member States have been inspired and altered in the light of the ECHR and the jurisprudence of its organs. Nonetheless, not all human rights protected by the ECHR have become general principles of EU law. Also, prior to the Lisbon Treaty, the CJEU and the European Court of Human Rights (ECtHR) used different interpretative methods (e.g. the CJEU tended to see fundamental rights to be subservient to economic freedoms) and thus drew different conclusions. Yet, this gap between divergent interpretations is now closing (see discussion below) and will eventually disappear when the EU accedes to the ECHR as the EU, and its judicial institution, the CJEU, would in effect fall under the jurisdiction of the ECtHR and will therefore have to safeguard ECHR provisions. Yet, again, technically, the UK would be only indirectly bound by the ECHR. That being said, the CJEU would undoubtedly remind the UK that it must ensure that its domestic law adopted in pursuance of EU law observes the rights enshrined in the ECHR.
Nonetheless, general principles of EU law are only gap fillers and as the Charter of Fundamental Rights, a free standing legal instrument, acquired treaty status in the CJEU relied more and more on it as codified/codifying instrument are easier to use than e.g. general principles of law. This leads into discussing a fifth point, whether the UK can be indirectly bound by the ECHR via the Charter. Indeed, Article 52(3) of the Charter requires that those Charter rights which correspond to rights guaranteed by the ECHR be given the same meaning and scope as provided under the said instrument (see also Case C-400/10 PPU J McB v LE  ECR I-8965, para 53). The Charter is binding upon the EU and Member States when implementing EU law (Article 51(1) of the Charter). This means that the UK is bound by the Charter and thus indirectly the ECHR (when similar rights are at stake) when it e.g. implements an EU directive. Whilst the UK has signed the so-called opt-out Protocol 30 to limit the Charter rights to being applied to UK law, this Protocol is irrelevant in this discussion. First, Article 1(1) of Protocol 30 only reiterates that the Charter does not create new rights and “does not call into question the applicability of the Charter in the United Kingdom or in Poland” (Joined Cases C-411/10 and C-493/10 NS v Secretary of State for the Home Department and ME et al v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform ECR I-nyr, para 119), i.e. the Protocol does not constitute a proper “opt-out” agreement and the UK is therefore obliged to abide by the provisions of the Charter. Second, the aim of Protocol 30 is to limit the justiciability and enforceability of social rights (Article 1(2) Protocol) which do not fall within the scope of the ECHR. As a result the UK is constrained, albeit indirectly, by the ECHR via the Charter in relation to the rights that feature in both legal instruments. Even if the UK disagrees with this interpretation of Protocol 30, the general principles of EU law relating to human rights (which post-accession to the ECHR will reflect the interpretation given by the ECtHR) apply to the UK when implementing EU law.
In conclusion whilst the UK’s membership to the EU would remain unaffected by its withdrawal of the ECHR it will indirectly have to comply with not only the rights enshrined in the ECHR but also the interpretation given to such rights by the ECtHR.