Will the European Union be brought under the Human Rights Convention?

It is possible that the European Union will soon sign up to the European Convention on Human Rights. The change would have interesting implications for European human rights law, as well as for UK citizens seeking redress for alleged human rights violations.

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It may sound odd that whilst member states are signed up to the European Convention, the European Union as a corporate body is not. But negotiations began last month (see this Council of Europe press release) on the European Union’s accession to the European Convention. The Vice-President of the EU’s Commissioner for Justice, Fundamental Rights and Citizenship said “We are now putting in place the missing link in Europe’s system of fundamental rights protection, guaranteeing coherence between the approaches of the Council of Europe and the European Union”.

The changes were made possible by the passing of Protocol 14, which also gave the Council of Europe – which monitors compliance by states with judgments of the European Court of Human Rights – stronger powers of sanction to use against unruly states (see our post). What practical effect will this change have? First, EU law, for example directives and treaties, could be directly challenged in the European Court of Human Rights in the same was as UK law can be at present. Moreover, according to the Council of Europe:

The EU’s accession to the ECHR will place the EU on the same footing as its Member States with regard to the system of fundamental rights protection supervised by the European Court of Human Rights in Strasbourg. It will allow for the EU’s voice to be heard when cases come before the Strasbourg Court. With accession, the EU would become the 48th signatory of the ECHR. The EU would have its own judge at the European Court of Human Rights in Strasbourg.

Accession will also provide a new possibility of remedies for individuals. They will be able to bring complaints – after they have exhausted domestic remedies – about the alleged violation of fundamental rights by the EU before the European Court of Human Rights.

The practical effects of the change are discussed today in a Guardian article by Robert Wintemute, a professor of human rights law at King’s College London. He suggests that the effect would be to bolster the standard of protection on offer by the European Court of Human Rights, by replacing the current minimum standard, consensus-based approach ((i.e. taking into account the approach of 47 European states) with a higher standard. He gives the following example:

A good example is equal access to legal marriage for same-sex couples. On 24 June, in Schalk and Kopf v Austria, the court decided that the convention does not yet require equal access. If the court applied human rights principles strictly, it would have found a violation. The court requires particularly serious reasons to justify legal distinctions based on sexual orientation, and has said that a couple seeking to marry need not have capacity to procreate, or be of different sexes. But this is where “European consensus” constrains the court’s application of human rights principles: only seven of 47 European countries allow same-sex couples to marry. (Another 13 provide registered partnership.)

Clearly, if the negotiations are successful, these changes could have significant effects on human rights law in the UK. We would be interested to hear your comments, which are enabled for this post.

Read more:

• Many European human rights decisions left unimplemented for years
• European Court of Human Rights sharpens its teeth
• Council of Europe raps UK on prisoner voting [updated]

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