Straining out a Gnat and Swallowing a Camel: The Convention, the Charter and Mrs May

Photo credit: Guardian

By Marina Wheeler QC

In a speech about Brexit last week, the Home Secretary shared what she called her “hard-headed analysis”: membership of an unreformed EU makes us safer, but – beware the non-sequitur – we must withdraw from the European Convention on Human Rights, which does not.

It is surely time for some clearer Government thinking about these questions. If politicians could put politics to one side, they might recognise that the Convention and the Strasbourg court are not enemies of our sovereignty, but there are aspects of EU law as applied by the Court of Justice in Luxembourg which are.

It has to be said. The Home Secretary is fighting the wrong foe. Hostilities seems to have begun with the cat. In October 2011, Mrs May notoriously told the Conservative Party Conference that the right to family life under Article 8 of the European Convention allowed an illegal immigrant to resist deportation because he had a pet cat.

The claim, it quickly emerged, was wrong. It was also odd, given her decision only months before, to concede the right of individuals to rely on the EU Charter of Fundamental Rights in English Courts.

The Charter, you will remember, is the EU’s compendium of rights and principles, containing familiar rights (to life, a fair trial, privacy) plus a whole lot more: “the right to engage in work and freedom to conduct a business” (Articles 15 and 16); “respect for cultural, religious and linguistic diversity” (Article 22); “the right to good administration” (Article 41).  Although attempts to give it legal force were rejected in 2005, when it reappeared as part of the Lisbon Treaty in 2007 the Blair government sought to limit its impact by negotiating what Parliament (and the press) were told was an “opt-out” (Protocol 30). In a case called NS – involving an asylum seeker she wanted to deport – Mrs. May gave the opt-out away (see my previous post here).

Government complacency about the Charter persists to this day. The February Agreement merely restates the terms of the defunct Protocol 30.

For her part, the Home Secretary distorts constitutional reality to obscure the extensive reach of EU law and the Charter. The Convention, she said in her speech, “can bind the hands of Parliament” and “makes us less secure by preventing the deportation of foreign nationals”.  In the same vein she asserted, “Strasbourg can issue orders preventing the deportation of foreign nationals. Luxembourg has no such power”. That is not hard-headed analysis – it is just incorrect. The Court of Human Rights in Strasbourg cannot “issue orders” or “bind the hands of Parliament”. An adverse judgment imposes an obligation as a matter of international law to amend our national law to bring it into line.  Mrs. May complains that the Strasbourg Court “tried to tell Parliament” we could not deprive prisoners of the vote. It did try. And we ignored it.  There is no ignoring a ruling of the Court of Justice in Luxembourg. As EU law is supreme – inconsistent national law is set aside. Our Courts are bound to apply a Luxembourg ruling, while Strasbourg judgments are “taken into account”.

The Home Secretary proposes withdrawal from the Convention because she says it delayed extremist cleric Abu Hamza’s extradition and the deportation of Abu Qatada. Strasbourg ruled these proposed actions unlawful by reason of the prohibition, echoed in numerous International Conventions, against knowingly sending a person to torture or to a judicial process reliant on evidence obtained by torture.  Although inconvenient, it was indisputably applying well-established human rights norms.

Contrast the actions of the Luxembourg Court, which has not shied away from ruling a proposed deportation unlawful on far less compelling grounds. In a case called Carpenter, it ruled that EU law prevented the deportation of a Filipino woman married to a British man because her husband provided services to advertisers in other Member States and her departure might curtail his ability to exercise that right.

Nowadays, since the EU acquired explicit competence in immigration, asylum and security matters, Court rulings which restrict the power to deport – or decide who to admit – are routine.  The Coalition Government’s Review of the Balance of Competences between the UK and EU sets out how this has evolved in a number of its 32 Reports. A key feature is the concept of EU citizenship, introduced by the Maastricht Treaty and developed by the Court to imply a status independent of nationality conferred by member states. Building on this, the Court has granted corresponding rights of entry and residence, as well as rights for third country (non-EU) family members. As these are EU rights, their scope is ultimately determined by the Luxembourg Court, often with dramatic impact at national level. For example, the Balance of Competences Report on Free Movement of Persons explains how a Luxembourg Judgment in 2008 (Metock) led to a five-fold increase in the number of suspected sham marriages reported by registrars between 2008 – 2011.

This background helps to explain why, the February Agreement states, under the heading of Free Movement, what might appear obvious: that member states may act against people who present false documents or enter into sham marriages to bypass immigration control.  It also permits member states to “control the presence of non-nationals who threaten public safety”.  On his return from the European summit in February, the PM explained to Parliament that these provisions would reverse judgments of the Luxembourg Court. Perhaps he overlooked the fact that member states have no power to reverse Court judgments.

In her speech, the Home Secretary argued that “Unlike the European Convention on Human Rights, the European Treaties are clear: “national security” they say, “remains the sole responsibility of each member state”.  This is indeed the wording of Article 4 of the Treaty on European Union.  So why is the phrase repeated in the February Agreement?  The obvious inference is that the government does not think the institutions are honouring this division of competence.

In any event, the Home Secretary appears to want it both ways. Her speech asserts that national security has nothing to do with the EU. It then goes on to argue that we need the EU to protect our security, identifying two specific measures to support this: the European Arrest Warrant and Passenger Name Records Directive.

It is important to recognise that the Community structure itself provides the rationale for many EU security measures: they are needed because internal border controls were removed courtesy of the Schengen Convention, or because national security measures are vulnerable to challenge as restricting the free movement of persons. But there is no reason why a measure such as the European Arrest Warrant, could not operate inter-governmentally, or if the UK left the EU, it could not have a mutually beneficial bilateral agreement with the EU along the same lines.

The Passenger Name Records (PNR) Directive, proposed in 2007, mirrored a US system to access information held by air-carriers already used in many states, including the UK.  One reason the UK pressed for EU measures was due to carriers’ fears that providing data on intra-community flights might unlawfully restrict the free movement of persons.  Although the Directive is plainly a valuable tool in the fight against terror, for years the European Parliament opposed it, largely on privacy grounds. This stance was bolstered by the Court’s flawed decision in the Digital Rights Ireland case when it struck down another security measure (the Data Retention Directive) as breaching the right to protection of personal data under Charter Article 8 (which has no parallel in the Convention).  The European Parliament finally agreed the measure on 25 November 2015, following the terrorist atrocities in Paris.  It is difficult to view a nine year adoption process as a success.

There is a further down side of legislating at EU level which can’t be ignored. The Directive permits the collection of PNR but it imposes strict controls on how this is done. As an EU measure, the interpretation of these controls – and how the rules are applied – becomes a matter for the Luxembourg Court.  The downside of a harmonised system is a loss of national control over how it should work, and the vulnerability to challenge by reference to the EU Charter.

Since 9/11, our Parliament and courts have developed a set of rules – taking into account case law developed in Strasbourg – to address the security threat posed by extreme Islamism, initially in the form of Al-Qaeda and now ISIS.  For over a decade they have grappled with difficult questions: how much sensitive information can be withheld from a suspect without undermining his right to a fair hearing? What level of surveillance, said to be necessary to protect ordinary citizens, unreasonably curtails their privacy rights? With input from the intelligence agencies, NGOs, an Independent Reviewer of Terrorism, Select Committees and others, a reasonable balance is being found between competing interests and rights.

Introducing Charter rights re-opens all this for no obvious gain. For example, in the AZ case, a refugee challenged the Home Secretary’s refusal to grant him travel documents as he was believed to be an Islamist extremist wishing to travel to Syria. His Counsel used the Charter to press for greater disclosure of sensitive material than national law or Convention jurisprudence currently require. Had the Judge agreed to refer the case to Luxembourg, the Court would have had free rein to craft these new rights in any way it chose. In fact, a reference from any judge, in any member state, would allow it to do this. Is the Home Secretary really unconcerned by these developments?  Is she really relaxed about the Luxembourg Court, with the power to set aside national law, and which was never set up to adjudicate on human rights, taking over this role?

Eager litigators, understanding the Charter’s unrivalled power to overturn laws, may profess their enthusiasm. But, in truth, it has few devotees. It was neither needed, nor much wanted in 2007: it was – is – a hotchpotch of rights and political aspirations, uncertain in scope, which was intended to provide meaning to an ailing EU.

By contrast, the Convention on Human Rights, drafted in the wake of the Second World War, is a truly pan-European instrument binding Russia and Turkey, which embodies common fundamental values. There may be grounds for amending how we give effect to it via the Human Rights Act, but you have to look hard to find a jurist – as opposed to a politician – who sees value in our withdrawal.

With respect, the Home Secretary needs to move on from the cat. It is not coherent to argue that the Convention places unacceptable constraints on national decision-making, while EU law and the Charter do not. Although government policy on human rights is a closely guarded secret, how about we force it into the light? Let’s rein in the Charter, keep the Convention and talk about tweaking the Human Rights Act.