Scottish Human Rights Law Group

By Thomas Muirhead

This paper explains why the full version of the Convention for the Protection of Human Rights and Fundamental Freedoms (also called the “European Convention on Human Rights” and “ECHR”) was incorporated into UK law by the European Communities Act 1972.

(Latest Version: 19th September 2009)

It is contended that the full version of the ECHR was incorporated into U.K. law by the passing of the European Communities Act 1972 (“ECA”) and the U.K. entering the common market.

This paper will at first set out the status of European Community and European Union law as stated in the European Community Treaty (“EC Treaty”) and the Treaty on European Union (“TEU”) (“EU Law”) in relation to U.K. Law before fully explaining the above proposition and its main effects.

The relationship between EU Law and U.K. Law

It is established and recognised by the U.K. Parliament, the European Court of Justice (“ECJ”) and the House of Lords (“HoL”) that EU Law is the supreme source of law in the United Kingdom: European Communities Act 1972; Van Gend en Loos v Neder-Landse Tariefcommissie [1963] C.M.L.R. 105; Costa v ENEL Case 6-64 [1964] ECR 585; Wilhelm v Bundeskartellamt [1969] ECR 1 at 14; Amministrazione delle Finanze dello Stato v Simmenthal SPA (No 2 Case 106-77) (1978) 3 CMLR 263; Macarthys Ltd v Smith [1981] QB 180; R v Secretary of State for Transport ex parte Factortame (No 2 – 1991) 1 AC 603; For an explanation of this see Aiden O’Neill, “Judicial Review in Scotland, A practitioner’s Guide”, Butterworths, 1999, Chapter 4, sections 4.26 – 4.55; Hansard on 24th March 2004

The ECJ in Amministrazione delle Finanze dello Stato v Simmenthal SPA (No 2 Case 106-77) (1978) 3 CMLR 263 spelt out that any national legislation that is in conflict with EU Law must be set aside.

The HoL in Factortame (No 2), after giving full consideration to Simmenthal and other cases of the ECJ, found that any provision or rule of U.K. law must be set aside (Subject to an interpretative requirement) if it is in breach of or inconsistent with EU Law. They further stated that when a prima facie case exists to show that a U.K. law is inconsistent with EU law then that law falls to be set aside on an interim basis: See Aiden O’Neill, “Judicial Review in Scotland, A practitioner’s Guide”, Butterworths, 1999, Chapter 1, Section 1.46.

The ECJ have created the principle of ‘direct effect’ – based upon the premise that the EU Law created rights for the citizens of member states which if enforced by them in the courts of the member States, would provide an additional supervisory function to that already contained in the former Arts 169 and 170 of the European Community Treaty (“EC Treaty”) (now Arts 226 and 227): Van Gend en Loos, Section 2(1) European Communities Act 1972.

Human Rights Under EU Law

The ECJ have stated that all EU citizens exercising their free movement rights outlined in articles 43, 56 and 59 of the EC Treaty have the full protection of The ECHR: Konstantinidis v Stadt Altensteig-Standesamt (C168/91) [1993] 3 CMLR 401.

Konstantinidis was concerned with a European Citizens right of Establishment. The ECJ found that any law in a member state that interferes with a Citizen’s right of Establishment was in breach of EU law and fell to be declared, as per Simmenthal, set aside. Advocate General Jacobs in his opinion (a fuller exposition on the applicable EU law) stated that at a minimum all laws of a member state must be compatible with the ECHR.

It then follows that there is a direct link between the rights of EU citizens and the free movement rights of persons, goods, establishment, services and capital (EC Treaty – Articles 23, 39, 43, 49, 56 and 59) and human rights and human rights law. Human rights considerations accordingly impact on all areas and all individual substantive issues of law in Scotland, the rest of the U.K. and the EU. Any member state that attempts to implement legislation that is incompatible with, doesn’t guarantee or, in fact, reduces the full panoply of rights guaranteed by the ECHR is acting unlawfully and, subject to an interpretation requirement, the enacted legislation falls to be set aside.

In 1996 the full court of the ECJ in Case 177/94 Re Gianfranco Perfilli [1996] ECR I-161 fully supported the opinion of the Advocate general in Konstantinidis by stating:

“According to settled case-law, where national legislation falls within the field of application of Community law, the Court, when requested to give a preliminary ruling, must provide the national court with all the elements of interpretation which are necessary in order to enable it to assess the compatibility of that legislation with the fundamental rights – as laid down in particular in the European Convention of Human Rights – the observance of which the Court ensures.”

If there was any doubt about the overall effect of EU Law on the legislation of member states The principles outlined above apply, as an even stronger proposition, in relations to the directly effective articles 17 and 18 of the EC Treaty (At Maastricht EU law was amended to make all citizens of the member states citizens of the European Union).

Articles 17 and 18 give all European Citizens the full protection of, at a minimum, the ECHR: Articles 17 & 18 EC Treaty, Article 6(1) Treaty on European Union (“TEU”), John Fairhurst & Christopher Vincenzi, “Law of the European Community”, 4th edition, Pearson Education Ltd, 2003 page 73, Konstantinidis, Grzelczyk v Centre Public D’Aide Sociale D’Ottignies-Louvain-La-Neuve (Case C-184/99) [2002] 1 C.M.L.R. 19; Baumbast v Secretary of State for the Home Department (C413-99) (2002) ECR I-7091; Aiden O’Neill, “Judicial Review in Scotland, A practitioner’s Guide”, Butterworths, 1999, Chapter 3.

Further protections or just the ECHR? – The UN Convention on the Rights of the Child (“UNCRC”), The Charter of Fundamental Rights of the European Union (“The Charter”).

In Konstantinidis Advocate-General Jacobs stated that:

“In my opinion, a Community national who goes to another member-State as a worker or self-employed person under Articles 48, 52 or 59 EEC is entitled not just to pursue his trade or profession and to enjoy the same living and working conditions as nationals of the host State; he is in addition entitled to assume that, wherever he goes to earn his living in the European Community, he will be treated in accordance with a common code of fundamental values, in particular those laid down in the European Convention on Human Rights. In other words, he is entitled to say ‘civis europeus sum’ and to invoke that status in order to oppose any violation of his fundamental rights.”

I contend that the common code of fundamental values should not be limited to the ECHR and must include the UNCRC and The Charter. Being able to invoke the ECHR, The UNCRC and The Charter should protect all European Citizens fundamental rights.

In order to understand the importance of human rights protections to European citizenship and the European Union you must first consider its history. After the second world war it was thought (For example: By Churchill and, most notably, the French foreign minister Robert Schuman) that if you joined the countries of Europe in an economic community then it would reduce, or make impossible, the possibility of future wars between them. In 1951 the European Coal and Steel Community (“ECSC”) was created. The ECSC joined, in an economic sense, the countries of France, West Germany, Italy, Belgium, Holland and Luxembourg. The ECSC has now evolved into a European Union of 26 countries. Even the briefest reading of the EU treaties shows that the foundation of the EU is the rule of law and the associated human rights protections for it’s citizens. These human rights protections are referred to, in Konstantinidis, as a ‘common code of fundamental values’ and they include the ECHR. Anyone who has even a passing knowledge of European history will understand why this is so: Can you imagine a Paschendale or an Auswitz occurring in a European Union where the Member States are joined in a common economic goal and their citizens are protected by a ‘common code of fundamental values’?

Who will trade with, work in, move to or reside freely in a member state where legislators can and do legislate in breach of the ECHR (and the UNCRC and The Charter). If you want to do that then you must leave the EU and, of course, that’s not what the citizens of the U.K. voted for in the United Kingdom European Communities Referendum, 1975. I contend that the U.K’s continued membership of the EU is in jeopardy unless it is judicially confirmed that all European Citizens while on British soil are protected by, at a minimum, the full version of the ECHR.

If any court has any doubt, although I can’t see how they possibly can have, about the human rights protections available to EU Citizens and the corresponding responsibility to ensure that the legislation of the member states is fully compatible with the ECHR (at a minimum) – then they are required to refer the question to the ECJ via an EC Treaty Article 234 Reference: Section 3 of the European Communities Act 1972; Simmenthal

The question of any interim relief will then be required to be considered while the ECJ considers and answers the 234 Reference (This can take as long as two years): Factortame (No 2); Anderson, David W. K., “References to the European Court.”, 2nd Edition, London, Sweet & Maxwell, 2002

Please note that the various legislatures of the member states still have responsibility for legislating in areas of their competence but just as in the case of Konstantinidis where it was stated that the German Authorities had the responsibility for their own legislation but only so long as that legislation didn’t interfere with the ‘right of establishment’. It follows that the national legislatures along with the national courts, at all levels, must ensure that all legislation is compatible with at a minimum the ECHR.

The Effect on the Scotland Act 1998 (“SA”) and The Human Rights Act 1998 (“HRA”)

All sections of the SA and the HRA that restrict or reduce the human rights protections available in the U.K. have to be set aside subject to an interpretive requirement.

The Interpretive Requirement

The ECJ and HoL have made it clear that before declaring an act or provision of an act of a member state to be void under EU law it is important to consider the requirement of interpretation: The national court should try to interpret existing national law, so far as it is in its power to do so, in the light of EU Law even where such interpretation means a departure from the plain and unambiguous wording of the relevant act of Parliament: Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR 4153, Webb v EMO Cargo Ltd (C32/93) [1994] 2 CMLR 729, Litster v Forth Dry Dock & Engineering Co Ltd 1989 SC (HL) 96), Aiden O’Neill, “Judicial Review in Scotland, A practitioner’s Guide”, Butterworths, 1999, Chapter 4, sections 4.43 – 4.53, John Fairhurst & Christopher Vincenzi, “Law of the European Community”, 4th edition, Pearson Education Ltd, 2003 page 168 – 172.

Reliance on EU Law in the U.K. Courts

Section 2 of the ECA reads as follows:

“2.— General implementation of Treaties.

(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable Community right” and similar expressions shall be read as referring to one to which this subsection applies.”

It is contended that all courts in the U.K. are under a duty to give the full effect of EU Law (Sometimes known as ‘Community Law’). Aidan O’Neill QC, in section 1.46 of his book ‘Judicial Review in Scotland – A Practitioner’s Guide’ explains, while referring to several seminal cases of the ECJ and the HoL, the procedures that national courts must follow whenever a litigant presents an argument that concerns his or her rights under EU Law. I have copied out this section in full here:

“1.46 In cases involving a European Community law element, the Court of Justice has held that any national rules, including procedural rules, which might impair, even temporarily, the full force and effect of Community law must be set aside (Case 106/77 Amministrazione delle finanze dello stato v Simmenthal [1978] ECR 629). Hence in Factortame (Case C-213/89 R v Secretary of State for Transport, ex p Factortame (No 2) [1990] ECR I-2433, [1991] 1 AC 603) the European Court ruled that the effective protection of Community law rights meant that national courts should have the power to grant interim orders protecting such rights. Any national procedural rules which prevented the interim protection of Community rights must be disapplied. The following propositions relating to interim protection may be derived from the decisions in Factortame:

- in any case in which an individual claims to have a right protected under Community law, the national courts have an immediate duty to consider the merits of the claim under Community law and to reach a view thereon; [See also The European Communities Act 1972 (“ECA”) section 2]

- if it appears to the national court that the claim is a good one, then all national rules which impede the enjoyment of that directly effective right should be set aside;

- if it appears to the national court that there may be some merit in the claim, but that a final decision on the matter requires an authoritative interpretation of the Community law from the European Court, then a reference should be made to that court under article 177 [now 234] of the Treaty of Rome;

- pending the outcome of this reference the putative right under community law should be protected by the national court granting all and any such orders as are necessary to ensure proper protection of the claimed Community right;

- any national rules, be they procedural or substantive, which could otherwise impede the interim protection of the putative Community law right should be set aside by the national court while awaiting the final judgement of the Court of Justice.”

Conclusion

All laws in the U.K. must be consistent with, at a minimum, the full version of the ECHR.

Everyone in the U.K. has the full legal protection of the full version of the ECHR.

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