‘The Lord Chief Justice paused, looked up at the glassy-eyed MPs and peers, and said: “If this is difficult, believe me, I am finding it so too”.’
Standpoint readers are not likely to be confused by the fact that there are two, entirely separate, European courts. It should come as no surprise to find that the European Court of Human Rights enforces the European Convention on Human Rights (ECHR) while the European Court of Justice — now formally known as the Court of Justice of the European Union-enforces European Union (EU) law.
You are also likely to know that the Human Rights Court is run by the 47-member Council of Europe from its base in Strasbourg while the Court of Justice was established in Luxembourg by what is now the 27-member EU. And you may even have grasped the essential difference between the two courts’ powers: human rights rulings from Strasbourg take effect only when states choose to amend their own laws — think prisoners’ votes — while decisions from Luxembourg on EU law are immediately binding on national courts and public authorities.
That distinction is reflected in UK legislation. Section 2 of the Human Rights Act 1998 merely requires our own courts to “take into account” Strasbourg rulings. Section 2 of the European Communities Act 1972 says that all rights and remedies under the EU treaties “shall be recognised and available in law”.With me so far? This, I’m afraid, is where it gets difficult. And that’s not just my view. In November, the joint parliamentary committee on human rights invited the Lord Chief Justice to give oral evidence. Lord Judge was asked about the relationship between the two European courts.
England’s senior judge turned a page of his notes and read a carefully-drafted reply to the question he had been expecting. At one point he paused, looked up at at the glassy-eyed MPs and peers facing him, and said: “If this is difficult, believe me, I am finding it so too.”
What we are all going to find difficult in the months and years ahead is the EU’s “accession” to the ECHR. The Lisbon treaty, which has been in force since December 2009, commits the European Union to sign up to the human rights convention. Officials at the Council of Europe have now drafted an accession treaty.
Why should individuals be allowed to submit EU measures to what the draft calls “external control”? Put simply, it is because Brussels now plays so large a part in all our lives. There are many areas of law in which the UK has ceded powers to the EU. At present, they are not covered by the human rights convention.Imagine that the EU issues some dodgy directive limiting freedom of expression and that the UK government has brought it into effect, as indeed it must. A writer complains that the new law breaches his rights under article 10 of the ECHR. He wants to take the British government to the human rights court. “Nothing to do with us,” the minister replies. “You should be taking action against the European Commission.” And that’s just what you’ll be able to do.
Hang on, I hear you say. Doesn’t the EU have its own court in Luxembourg? How does that fit into the picture? Before you can take a state to the human rights court, you must exhaust your domestic remedies. That means taking whatever action you can in the national courts before going to Strasbourg. By analogy, any challenge to an EU measure will have to start in Luxembourg. If the issue is one of EU law, the Luxembourg ruling will be final. But if there is a human rights point and you are not happy with the outcome, you may then be able to take the EU to Strasbourg.What effect will the Luxembourg ruling have in the meantime? Lord Lester QC, a member of the human rights committee, suggested to Lord Judge that “we would not have to give direct effect to the Luxembourg court’s interpretation since, in the end, it would be up to the Strasbourg court”. The chief justice wisely sat on the fence: “You may well be right,” he said, “but the opposite submission would be attractive too.”
That’s because decisions from the Luxembourg court are binding on the courts of the United Kingdom. Far from being something that our own courts must simply “take into account”, a judicial interpretation of the human rights convention by a European court would, for the first time, be “recognised and available in law”. Our courts would simply have to follow it.
This was the warning Lord Judge had for the human rights committee. “If the European Court of Justice says that it will apply the European Convention on Human Rights . . . then down the line we will find ourselves being forced to, at least, consider . . . that we are obliged to follow it because Luxembourg is following it. That is a very important political question and, if I may say so, you need to be alert to it.”