Wednesday

21st Nov 2018

UK faces 'nuclear option' if it scraps European rights charter

  • UK conservatives want a weaker European Court of Human Rights (Photo: Council of Europe)

The European Commission may seek to suspend the UK's voting rights at the EU level should it withdraw from the European convention of human rights.

The threat surfaced after a Tory policy document issued last week by the UK’s justice secretary Chris Grayling revealed plans to downgrade the jurisdiction of the European court of human rights to that of an advisory body.

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UK conservatives want to renegotiate the decades-old pact with the Strasbourg-based human rights watchdog, the Council of Europe, should the court's judgments remain binding.

“In the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European convention of human rights,” notes the eight-page position paper.

EU member states also have an “explicit obligation” to the convention under the EU treaty rules.

Should a Conservative-led UK government decide to scrap it, the commission could invoke article seven of the treaties.

“Such a situation, which the commission hopes will remain purely hypothetical, would need to be examined under articles 6 and 7 of the Treaty on European Union,” a commission source told this website.

Article 7 is commonly referred to as the ‘nuclear option’ of the commission’s enforcement arsenal and could lead to the suspension of a member state's voting rights.

It has never been used. Austria was once threatened over fourteen years ago when the centre-right party went into government with the far-right Freedom Party.

Invoking the article is also not easy.

A large backing of member states and the European Parliament must “determine the existence of a serious and persistent breach” of values outlined in the charter of fundamental rights.

London-based think tank Open Europe says making such a legal argument for a values breach, should the UK withdraw, would be difficult because there is a commitment to enshrine the convention in Britain’s domestic law.

Prime minister David Cameron had mooted the policy move earlier this month when he pledged to scrap the UK’s human rights act.

“Let me put this very clearly: we do not require instruction on this from judges in Strasbourg,” said Cameron in a speech at a party conference in Birmingham.

Critics describe the Tory policy brief and Cameron's pronouncements as an attempt to attract Ukip voters in the lead up to the elections and possible referendum to leave the EU.

Few case rules against UK at Europe court

The origins of the Tory grief is rooted, in part, in three disputed judgments handed down by the Strasbourg-based court on prisoner voting, life sentences for prisoners, and the deportation of alleged terrorist Abu Qatada.

All three decisions are unpopular in the UK, sparking complaints against the overall binding nature of the European court judgments on British law.

While the judgments are binding, their enforcement is limited to exerting peer pressure from the council of ministers, a political body.

The UK wins most of the cases brought against it.

Last year, the court dealt with 1,652 applications concerning the UK - 1,633 or 98.8 percent were declared inadmissible or struck out.

Only in eight cases – or 0.4 percent - did the court find at least one violation of convention rights.

The UK has had a total of 499 judgments passed onto it between 1959 and 2013. By comparison, Turkey has had 2,994, Italy 2,268, Russia 1,475 and France 913.

There are four possible scenarios for the UK and the Council of Europe.

First, it can remain a member. Second, it can withdraw after a six-month notice and join Belarus as the only other European nation not in the body.

Greece, while under military dictatorship rule, is so far the only country to have ever withdrawn membership.

Third, the Council can either accept specific arrangements for the UK, which don’t apply to the other 46 states running the risk that Russia, Turkey, Azerbaijan, possibly others may also make similar demands.

Fourth, the Council can accept in principle that the court’s judgement just becomes advisory.

The UK was among the first to ratify the European convention of human rights in 1950.

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