There is talk that Boris Johnson will agree to a deal with the EU that requires the UK to remain tied to the European Convention on Human Rights.
During the Brexit process, there had been talk of the UK going its own way concerning Human Rights. Possibly with a new all-encompassing Human Rights Act.
Mostly driven by the way that our current human rights laws are interpreted these days, in favour of the perpetrators and against the victims of their crimes.
This did, of course, bring down condemnation from all pro-EU and human rights activists, who seem to revel in taking every opportunity to do the UK down.
Because going down that route could entail the UK walking away from the European Convention on Human Rights. A big no-no for the left.
Now, before I go on, I just want to make sure we’re all on the same page.
There are two main organisations involved here.
The first is the European Union with 27 member states, founded in 1993, which most of us are fully aware of.
The other is the Council of Europe. Which is a totally different organisation with 47 member states and formed back in 1949.
But they both use the same flag and anthem, and both have a base in Strasbourg. So easily confused – especially as both work towards a closer Europe.
And the Council of Europe has a whole page on its website dedicated to trying to differentiate itself from the EU. Especially where the EU Council of Ministers is concerned.
Anyway. The Council of Europe is where the European Convention on Human Rights and its Court sits – nothing to do with the European Union.
However, to be a member of the EU, it is also generally accepted that you also have to sign up to the Council of Europe’s ECHR.
OK, so far?
And on this the Council of Europe says:
“The Council of Europe is a separate organisation from the 27-member EU. No country has joined the EU without first joining the Council of Europe.”
But after the 31st of December, the UK could leave the ECHR if it chose to, something the EU seems extremely concerned about. Brussels wants us to agree to be tied down to remaining in the ECHR under the terms of any new UK-EU Brexit agreement.
But there is one glaring omission on the Council of Europe membership list.
Oh yes, every one of the 27 EU member states is currently there, as is the UK – but the European Union as a body is not included. The EU has never signed up to it.
This is something I’ve talked about before, but it merits some extra time being spent on it.
Now, article 6(2) of the Lisbon Treaty – international law – that came into force on the 1st of December 2009 says:
“The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.”
And when it says the Union, it means the EU itself as a body, not the individual member states.
But someone somewhere must have thought, ‘hang on a minute, something doesn’t add up’.
Because the European Union’s own Court, the European Court of Justice was asked to give an opinion on it.
But that opinion did not come until 2014 – five years after the Lisbon Treaty came into force.
The question, which the ECJ was asked to give an opinion on, was:
“Is the draft agreement providing for the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950 (“the ECHR”),] compatible with the Treaties?”
And after much deliberation the judges on the ECJ answered:
“The agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms is not compatible with Article 6(2) TEU or with Protocol (No 8) relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms.”
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Brexit, the EU and Human Rights.