UK Constitutional Law Association

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Alex Peplow: Withdrawal from the ECHR after Miller – A Matter of Prerogative?

Alex PeplowDoes the decision of the Supreme Court in the case of R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 affect the way in which the UK could withdraw from the European Convention on Human Rights?

It is submitted that it clearly follows from the Miller judgment and the provisions of the Human Rights Act 1998 that there is no prerogative power for the government to denounce the Convention and withdraw the UK from it, and that any such denunciation must be authorised by an Act of Parliament.

Introduction

The UK, along with the other members of the Council of Europe, signed the European Convention on Human Rights on 4 November 1950. The ECHR is a binding treaty in international law, with its own court to interpret the application of the articles and to declare when a Contracting State is in breach.

The Convention also has a built-in withdrawal mechanism. Under Article 58(1):

“A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months’ notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties.”

Article 58 then goes on to provide that such a denunciation is not retrospective, i.e. a Contracting Party is not excused from compliance with its obligations under the Convention in respect of anything done up to the expiry of the 6 months’ notice, even after the denunciation has taken effect.

The present and last governments’ position on ECHR withdrawal has been inconsistent, but it has recently been suggested that the Conservative party could make ECHR withdrawal a manifesto pledge for the 2020 general election. If, however, the government wished to proceed with withdrawal but had difficulty obtaining Parliamentary support for the proposal, it may lead them to consider taking unilateral action to withdraw the UK from the ECHR using Royal prerogative powers.

This article considers whether the government could lawfully exercise the Royal Prerogative power to denounce the Convention under Article 58 in order withdraw the UK from it, following the Supreme Court’s judgment in the Miller case.

The Royal Prerogative

The normal position in UK constitutional law (unchanged by Miller) is that the Crown, in practice acting through the executive, retains the power to enter and withdraw from international treaties, using prerogative powers. The exercise of the treaty-making prerogative does not normally require parliamentary oversight and its use is not normally justiciable, although the courts can intervene to determine if the power exists at all.

There are recognised exceptions to this general power where the exercise of the prerogative would result in the removal of rights in domestic law, and also (following Miller) where it would cut off a source of domestic law. This situation is comparatively rare, since the dualist theory of international law holds that treaties ordinarily have effect only on the international plane unless they are incorporated into domestic law. Therefore, the making or unmaking of a treaty cannot affect domestic law unless some further step has been taken to incorporate it into domestic law, or render some provision of domestic law dependent on it.

The ECHR in domestic law

The ECHR has been largely incorporated into UK law through the Human Rights Act 1998 (“HRA”). This is not required by the Convention itself, but it was designed to have the effect of “bringing rights home” so that they were enforceable in domestic courts.

The HRA imposes domestic law obligations on public authorities not act contrary to Convention rights (s. 6) and grants a domestic law remedy to citizens by allowing them to sue public authorities on the grounds of breach of the Convention rights (s. 7). It also requires courts to interpret domestic primary and secondary legislation in a way which, so far as possible, is consistent with the Convention rights (s. 3). The minister in charge of any government Bill proceeding through Parliament must make a statement as to whether the Bill is compatible with the Convention rights (s. 19).

S. 1 HRA provides that:

(1)     In this Act “the Convention rights” means the rights and fundamental freedoms set out in—

(a)     Articles 2 to 12 and 14 of the Convention,

(b)     Articles 1 to 3 of the First Protocol, and

(c)     [Article 1 of the Thirteenth Protocol],

as read with Articles 16 to 18 of the Convention.

(2)     Those Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation (as to which see sections 14 and 15).

(3)     The Articles are set out in Schedule 1.

The question arises: what is the source of the content for the substantive obligations in the HRA? Is it the Convention itself, or is it the text of the Articles set out in Sch 1 (which replicate the content of the relevant Convention articles but are not formally linked to them)? This is important because it addresses whether the Convention is an external source of law for the UK. It is submitted that, for the following reasons, the source is plainly the Convention itself.

Firstly,  “Convention rights” are defined in s. 1 HRA with reference to “the Convention”, which is in turn defined as being the ECHR “as it has effect for the time being in relation to the United Kingdom” (s. 21 HRA) [emphasis added]. If the ECHR ceases to apply to the UK, then the term “the Convention” would be emptied of content in the HRA.

The operative parts of the HRA (e.g. ss. 2, 3, 4, 6, 7) refer to “Convention rights”, (i.e. as defined in s. 1, which depends on s. 21) rather than to Sch 1.

If Parliament had intended for the text of Sch 1 to be the source of content for the operative provisions in the Act, it could have said so explicitly. There is in fact no reference to Sch 1 in the HRA other than in s. 1(3). By contrast, for example, Schedule 4 to the Northern Ireland Act 1998 sets out part of the Belfast Good Friday Agreement (an international treaty), and s. 16C(14) defines a term as having the meaning set out in Schedule 4.

Secondly, the Convention as the source of content is supported by s. 117(A) of the Nationality, Immigration and Asylum Act 2002, which states that:

(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—

a. breaches a person’s right to respect for private and family life under Article 8, and

b. as a result would be unlawful under section 6 of the Human Rights Act 1998.

S. 117D provides that “Article 8” is defined as “Article 8 of the European Convention on Human Rights”. It does not refer to Sch 1 HRA.

Thirdly, the judgments of the European Court of Human Rights are themselves a “soft” source of law for the UK, in that they must be “taken into account” by UK judges when adjudicating on issues concerning Convention rights (HRA, s. 2). It would be strange if the Strasbourg jurisprudence on the Convention had to be invoked when interpreting a part of domestic legislation which was not directly tied to the Convention itself.

Fourthly, the long title of the HRA begins “An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights”. Giving effect to those rights implies tying the obligations in the HRA to the rights at source in the Convention, not creating a parallel but separate code in domestic law, which would be the effect if Sch 1 was the source content for HRA obligations. An amendment to the relevant Convention articles on the international plane would not automatically be reflected in Sch 1, meaning that the domestic law would lag behind until Parliament amended Sch 1. Clearly, the purpose of the statute would not be served if it could not take account of changes to the Convention articles.

Therefore, it is submitted that the ECHR, as an international treaty, is clearly a direct source of domestic law through the HRA, which depends for its content on the continued application of the ECHR to the UK. If the ECHR ceased to apply to the UK, then all the main obligations of the HRA would be rendered meaningless. The repetition of the text of the articles in Sch 1 HRA does not add anything material to the rights and obligations, and does not provide the content of those obligations.

Further, the Convention rights (as defined in the HRA) also operate as a legislative constraint on the Northern Ireland Assembly (Northern Ireland Act 1998, (s. 6(2)), the Scottish Parliament (Scotland Act 1998, s. 29(2)), and the Welsh Assembly (Government of Wales Act 2006, s. 108(6)).

Therefore, through the HRA, the ECHR is heavily integrated into the public law of the UK, and into the constitutional frameworks of the devolved nations.

The HRA is silent on the issue of the denunciation of the Convention, although its definition of “the Convention” appears to provide for the possibility that the ECHR may have effect to a greater or lesser extent (and, by implication, not at all) in the UK.

The Miller case and its application to the ECHR

The Miller case concerned the UK’s “constitutional requirements” for deciding to give notice to the European Council under Article 50 TEU of the UK’s intention to leave the EU.

The Supreme Court accepted that the European Communities Act 1972 (“ECA”) acts as a “conduit pipe” through which international law rights flow into domestic law. The majority held that, although the content of EU law is variable, dependent on action on the international plane, the ECA establishes EU law as a dynamic and overriding source of UK law, and a source of domestic legal rights. Therefore (following established case law on the prerogative), the government could not use the prerogative to withdraw the UK from the EU treaties; there was no statutory authorisation. The fact that the legislation did not expressly exclude the prerogative did not matter; there was no such power unless created by statute. The majority judgment held (at para 81) that:

“It would be inconsistent with long-standing and fundamental principle for such a far-reaching change to the UK constitutional arrangements to be brought about my ministerial decision or ministerial action alone. All the more so when the source in question was brought into existence by Parliament through primary legislation, which gave that source an overriding supremacy in the hierarchy of domestic law sources.”

The ECHR is nowhere near as “dynamic” a source of law as the EU. The ECHR is a treaty, subject to amendments on the international plane by states. In theory, the content of particular articles could be amended by agreement, although this has not yet happened. The Council of Europe, unlike the EU, does not have a legislature to create new laws which are imposed directly on member states without any treaty amendment. The ECHR is not overriding in the UK – the HRA deliberately preserves the sovereignty of Parliament. The jurisprudence of the Strasbourg court is not directly applicable or overriding in UK law in the same way as judgments of the Luxembourg court.

However, while the ECHR does not override domestic law, statutes must be “read down” in accordance with it. Non-compliance by a public body with a Convention right incorporated in the HRA is a cause of action in domestic law. Incompatibility of a statute with a Convention right (as declared by a court) can trigger a legislative amendment procedure not otherwise available in the UK constitution (s. 10 HRA). Judgments of the Strasbourg court must be taken into account by domestic courts, and domestic courts must “keep pace with the Strasbourg jurisprudence” (the Ullah principle). The Convention is also built into the constitutions of the devolved nations as a legislative constraint (and this was also recognised by the Supreme Court with regard to EU law – see Miller para 128). The Convention is plainly an important source of substantive, procedural, and constitutional law in the UK.

Therefore, while it could be argued that the ratio of the Miller judgment is confined to the wholly exceptional and unique nature of EU law, it is submitted that its core conclusions are equally applicable to the ECHR. Withdrawal from the ECHR would be a major constitutional change, both at the UK level and at the level of the devolved nations. It would also largely empty the HRA of substantive content and directly remove domestic law rights; indeed it would do so more directly than a notice under Article 50 TEU, which merely begins a process of withdrawal that will result in a Member State leaving the EU, subject to a process of negotiation.

This conclusion is also supported by Ex p Fire Brigades Union [1995] 2 A.C. 513, in which the House of Lords held that a minister could not use prerogative powers to set up a criminal injuries compensation tariff scheme which was inconsistent with a scheme set out in an Act of Parliament that had yet to be brought into force. Such a use of the prerogative would “frustrate the will of Parliament expressed in a statute”. It would effectively nullify the statutory scheme enacted by Parliament through unilateral executive action, and was accordingly unlawful.

Does the power to derogate from the Convention make a difference?

A derogation under Article 15 ECHR is effectively a limited suspension of the operation of parts of the Convention in a particular Contracting State. Importantly, it is a mechanism contained within the Convention itself, and so there is no non-compliance with the Convention as a whole by imposing a valid derogation. Therefore a derogation from the Convention is fundamentally different from denunciation under Article 58, which terminates the Contracting State’s treaty relationship entirely.

The Secretary of State may make a designated derogation order under s. 14 of the HRA. Such orders limit the domestic application of the Convention under the HRA. The power to make a derogation order is a statutory power and not a prerogative power, and subject to judicial review (see A v Secretary of State for the Home Department [2004] UKHL 56). Where an executive power is brought under statutory control, the power is derived from Parliamentary authority and not from prerogative (the so-called De Keyser principle).

Therefore, the ability to derogate from the Convention does not affect the conclusion that there is no prerogative power to denounce the entire Convention.

Conclusion

For all of the above reasons, it is submitted that there is no prerogative power for the government to denounce the ECHR without express parliamentary authorisation. This follows from the Supreme Court’s reasoning in Miller, but arguably followed in any event from the earlier case law, since the Supreme Court simply relied on what it found to be the well-established constitutional position that ministers cannot affect fundamental constitutional change, cut off a source of law, or change domestic law rights deriving from that source of law.

What if the government unilaterally purported to denounce the Convention anyway?

If the domestic constitutional position is indeed that the government has no power to denounce the Convention without an Act of Parliament, what would happen if they purported to do so anyway? Would the UK be bound by the denunciation?

An important difference between Article 58 ECHR and Article 50 of the Treaty on European Union (the subject of the Miller case) is that Article 50 TEU states that a Member State of the EU may “decide to withdraw from the Union in accordance with its own constitutional requirements [emphasis added]. Therefore, the validity of an Article 50 notice is expressly dependent upon the decision having been validly taken at the domestic level.

In relation to the Article 50 TEU question, Ewan Smith has argued on this blog, relying on (and extrapolating from) Article 46 of the Vienna Convention, that the UK might only be able to argue that a purported Article 50 notice by the government was defective on the grounds of a breach of domestic law if it was “objectively evident” to the EU that a purported notice was given in breach of an internal law of “fundamental importance”. It is probably safe to say that, following the widely publicised Supreme Court judgment in Miller, the European Council is now well aware that the UK government does not have the power to give notice without an Act of Parliament.

Article 58 ECHR contains no reference to “constitutional requirements”, and so arguably a notice which is defective in domestic constitutional law could still have the effect of denouncing the Convention for the purposes of international law. There does not appear to be a statutory provision or judicial decision clearly indicating that an Act of Parliament is required to denounce the Convention under Article 58, and so it may not currently be “objectively evident” that a notice given by ministers would violate an internal law of “fundamental importance”.

Ewan Smith argued that we should “defend the constitutional primacy of Parliament, but also to publicise that fact as widely as possible.” If it becomes clear that the government intends to denounce the Convention without Parliamentary authority, then it may be necessary to seek declaratory relief in court, just as Gina Miller did in relation to the EU, in order to prevent the UK’s hands being tied on the international plane by domestically invalid unilateral executive action. It is to be hoped that, following the Miller case, the government would not attempt to take such action.

With thanks to Dr Jeff King for comments on an earlier draft of this blog post.

Mr Alex Peplow, Trainee Solicitor at Fisher Meredith LLP. Mr Peplow is also a volunteer researcher for the Lawyers Against Repeal of the Human Rights Act project.

(Suggested citation: A. Peplow, ‘Withdrawal from the ECHR after Miller – A Matter of Prerogative?’, U.K. Const. L. Blog (28th Feb 2017) (available at https://ukconstitutionallaw.org/))

4 comments on “Alex Peplow: Withdrawal from the ECHR after Miller – A Matter of Prerogative?

  1. seethingmead
    February 28, 2017

    Alex,
    Interesting post and assertion. How does all that stack up with Lord Nicholls’s words in McKerr at [26] where he is clear that there is a distinction between ECHR rights and Convention rights under the HRA?

  2. seethingmead
    February 28, 2017

    Alex
    Isn’t the difference exactly the point that the HRA does not “incorporate” the ECHR (though you do use that term) unlike the ECA 1972; the rights found in the ECHR and elaborated upon by the Court are not part and parcel of domestic law – there is no sense in which domestic law is altered the moment a new protocol comes into force or a new judgment handed down at Strasbourg? “All” Convention rights are are (i) a new standard of interpretative guidance: s.3 and (ii) an additional gauge to test the lawfulness of governmental decisions: s.6.

  3. seethingmead
    February 28, 2017

    I would love to be wrong and would very much welcome Parliamentary involvement, even vouchsafing of the HRA, but think that two schemes are conceptualised and thus structured very differently

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