For as long as I have been a legal journalist, I have tried to explain to people that there are two separate European courts run by two unrelated European bodies. The 47-member Council of Europe administers the European Convention on Human Rights and supports a court in Strasbourg that decides whether the convention has been breached. The 27-member European Union is the source of EU law and provides a court in Luxembourg to interpret it. The European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU) are different courts in different countries with different purposes, as their names suggest.
As the result of a breakthrough earlier this month in negotiations between the two courts’ sponsoring bodies, those simple certainties will soon be no more. Terms were agreed on which the EU would sign up – or ‘accede’ – to the human rights convention.
There is good reason for this. The more we are governed by EU law, the less we can blame our own government for breaching our human rights. There is little point in taking the UK to Strasbourg if it is simply implementing decisions made in Brussels. There is even less point if the alleged breach of human rights was the responsibility of the European Commission. The need for EU accession to the human rights convention has been recognised since the late 1970s. It became a legal requirement when the Treaty of Lisbon came into force at the end of 2009. But making it happen was far from easy. That is because the convention, as drafted, applies only to states that have joined the Council of Europe. The EU, of course, is not a state.
So the convention will need to be amended. That happens from time to time when member states approve what are called protocols. But it was decided that a better way would be to have an accession treaty, amending the convention and, at the same time, making the EU a party to it. Although the EU is not a state, its members are. So the accession treaty creates a new mechanism to allow the EU, if it wishes, to become a co-respondent in cases brought against its member states. Similarly, EU member states may choose to become co-respondents to proceedings instituted against the EU.
This mechanism will allow the institution responsible for a decision – the EU or a member state – to defend itself. But it will also make it possible for the appropriate institution to be held to account, since a co-respondent is a full party to the case and will be bound by the judgment. It will also be possible for Council of Europe states to bring human rights cases against the EU – and vice versa.
Before you can take a government to the ECtHR, you must exhaust your domestic remedies. That may involve one or more appeals. You can get to the CJEU without appealing because any national court may ask Luxembourg to issue a preliminary ruling interpreting EU law. However, you do not have to do this. Going to Luxembourg is not a domestic remedy that you need to exhaust. I suspect the EU was not very happy about the prospect of adverse rulings from Strasbourg without any prior input from its own court in Luxembourg. So cases in which the EU is a co-respondent will go to the Luxembourg court first, although the CJEU’s assessment of the case will not be binding on the ECtHR.
As a party to the convention, the EU will be able to nominate candidates for election to the court. Since Strasbourg judges are elected by the parliamentary assembly of the Council of Europe, the EU will send a delegation to the assembly with voting powers. The EU judge will have the same status as national judges.
There is much more detail, of course, including arrangements for funding. Both the CJEU and the ECtHR will have to give their opinions of the draft accession agreement before it can be adopted by the Council of Europe’s committee of ministers and opened for signature by member states and the EU. All this will take time: a couple of years, perhaps.
But where does it leave the UK? The whole agreement is drafted on the basis that some members of the Council of Europe will be EU states and some will not. It does not provide for the possibility of a state that is a member of the EU but not the Council of Europe. And yet that was the idea floated last month by the home secretary, when Theresa May suggested the UK might leave the human rights convention. When people in the UK are allowed to take the EU to the ECtHR, that prospect will become even more implausible.