The European Convention on Human Rights (ECHR) has been much maligned in the British press. But with the UK set to withdraw from the EU’s Charter of Fundamental Rights and continuing uncertainty surrounding the future of the Human Rights Act, Dimitrios Giannoulopoulos warns we risk backsliding on the protection of human rights in the UK unless we continue to respect the Convention. He takes the right to fair trial as a key illustration.
Confusion abounds about the future of Britain in Europe. Theresa May has gone so far as to suggest in Parliament that the UK has not decided yet how to proceed with Brexit:
It is about developing our own British model. So we will not take decisions until we are ready. We will not reveal our hand prematurely. And we will not provide a running commentary.1
On the common market, immigration, agriculture, business and education, to take a few stark illustrations, all is really to play for in deciding the UK’s future relationship with Europe. The outcome can theoretically range from the extreme of quasi-EU member status to burning bridges with Europe, even if it is intuitive to predict that the UK and the EU will in the end settle for the middle ground.
In the area of criminal justice and human rights, however, we already have a solid indication of ‘the day after’. This is because the Lisbon Treaty – in giving the UK the ability to opt in and out of EU criminal justice legislation – has in reality brought about a de facto Brexit. In relation to fair trial rights, more specifically, the UK has, for the most part, chosen to not opt in to key legislation introduced – in the form of EU directives – in the aftermath of a 2009 roadmap which set out a gradual approach towards establishing a full catalogue of procedural rights for suspects across the EU.2
The roadmap directives built on fair trial rights laid down in the Charter of Fundamental Rights of the European Union (the Charter). Now neither the Charter nor the directives giving it effect will be relevant to the UK once it has formally exited the EU (with the exception of those directives that will have already been transposed into national law, unless Parliament decides otherwise), and by definition the UK will no longer be part of this European integration process that has arguably triggered a transformation of fair trial rights in Europe.3
(Missing out on) the fair trial rights revolution in Europe?
Following the roadmap, the EU adopted far reaching directives on the rights to interpretation and translation (2010), information (2012), and access to a lawyer in criminal proceedings (2013), taking a major first step in the direction of establishing common minimum standards for suspects and accused persons across the EU. These directives signalled ‘a fundamental shift in the focus of European criminal law, from a system privileging inter-state judicial and police cooperation to a system where the protection of the fundamental rights of the affected individuals should be fully ensured’.4 In 2015 the Council and Parliament agreed a directive on procedural safeguards for children suspected or accused in criminal proceedings. Earlier this year the Council adopted a directive that aims to strengthen certain aspects of the presumption of innocence, with an emphasis on the right to silence and the right against self-incrimination, and the right to be present at trial in criminal proceedings. Finally, only days after the referendum, the EU institutions agreed the most controversial of the legal texts planned as part of this highly ambitious project: the directive on the right to legal aid, which aims to increase ‘mutual trust’ among EU states and ultimately enhance European cooperation in criminal cases.5
Taking much of their inspiration from European Court of Human Rights jurisprudence that has had a cataclysmic effect in EU Member States, the roadmap directives underpin a fair trial rights revolution in Europe and an unprecedented coming together of EU Member States around a group of core pre-trial procedural rights.6 But the UK has chosen to stay out of this process. It has transposed the first two – less controversial – directives on the right to translation and interpretation and the right to information, but has confirmed that it will not opt in to any of the subsequent directives.
The UK’s decision to not opt in to the directive on the right to access to a lawyer in particular was perhaps the biggest oxymoron in this process of post Lisbon emerging isolationism in criminal justice matters; the UK had long led the way in Europe in legislating custodial interrogation rights and ensuring their effective implementation in practice.7
Brexit’s damaging effect
While the UK has not transposed post Lisbon directives recognising key procedural rights, it has opted in to a significant number of EU directives – and opted back into key third pillar measures – designed to enhance judicial and police cooperation and facilitate the fight against crime, most notably the European Arrest Warrant. However, as Valsamis Mitsilegas has demonstrated, this ‘varied landscape’ with regards to UK participation in EU criminal law measures has been posing ‘significant challenges for legal certainty, coherence and the protection of fundamental rights’ even prior to Brexit, and will considerably reduce the scope for criminal justice cooperation with the EU in the post Brexit era.8 This is because the roadmap directives aimed to improve the balance between judicial and police cooperation measures that facilitate prosecution and those that protect procedural rights of the individual,9 with the aim, ultimately, to enhance mutual trust as the cornerstone of judicial cooperation in the EU.10 After Brexit, it will therefore be challenging for the UK to secure the former – even if it is through bilateral agreements with EU Member States – without subscribing to the latter.11 These two key areas of EU legislation in criminal law matters are now highly intertwined, and, once outside the opt in/opt out compromises previously allowed by the Lisbon Treaty, the UK will arguably no longer be able to cherry-pick the instruments it prefers. Brexit will thus put the UK at a disadvantage on judicial and police cooperation in Europe.
Equally importantly, it is suspected persons in this country who are likely to be worse off as a result. Of course, we should be under no illusion that fair trial standards in EU Member States improved overnight after the directives came into force. Nothing could be further from the truth.12 In addition, the common law’s strong grounding on the adversarial tradition provides sufficient reassurance that the UK will not be left behind in Europe in relation to protecting fair trial rights. But all this is not to say that the UK system is above reproach13 or that it does not stand corrected by external (European) oversight, or that it has not already benefited from the joined up work of the EU Member States and the institutions of the EU.
For example, the right to information directive has created a new obligation on police to provide sufficient information to the suspect prior to the interview, as well as documents essential for challenging the lawfulness of arrest or detention when the suspect is booked in at the police station, at reviews or on charge. In other words, it filled an important gap in existing legislation. The new directive on the presumption of innocence would have probably necessitated reopening the discussion about the courts’ power to draw adverse inferences from silence,14 a taboo of UK criminal justice that one hardly comes across in other parts of the world – including in the common law world – but that has mysteriously been taken as something of a given in the English Law of Evidence and criminal procedure.15 And in view of the controversial cuts imposed by UK governments on legal aid in recent years,16 the legal aid directive would have provided a useful external point of reference.
It must be stressed that by opting out of legislation that concerns fair trial rights, the UK has not just turned its back on Europe, it has also turned its back on its own history of noteworthy advances in this area – advances that have had a marked influence in Europe. With Brexit looming, it is therefore now reasonable to predict that the UK’s ability to positively affect the practice of other countries on suspects’ rights will be diminished.17
The way forward: a renewed emphasis on the ECHR?
The imminent departure from the Charter of Fundamental Rights and relevant EU directives represents a missed opportunity for enhancing the protection of suspects’ rights in the UK. But on the other hand, both the Charter and EU legislation on fair trial standards are still in their infancy, and the UK has generally fared well under the sheer influence of the ECHR as regards the protection of suspects’ rights in the recent past. Placing a renewed emphasis on ECHR jurisprudence to fill in the gap might therefore go some way towards guaranteeing the protection of key procedural rights, even if it does not provide the momentum for the accelerated and comprehensive reforms that one might otherwise be able to envisage under the EU directives, and even if it cannot secure enforcement through the more rigorous mechanisms that are available to EU law.18
It was indeed Strasbourg that breathed new life to the EU project on common fair trial rights, after this had come to a standstill as a result of resistance from a number of influential EU Member States,19 and that Strasbourg jurisprudence has continued to evolve – at an impressive pace – long after the first roadmap directives came into effect. What is more, ECtHR jurisprudence on suspects’ rights is now starting to directly take into account the roadmap directives.20 This means that in subscribing to the Convention, the UK will at the same time be upholding guarantees that are part of the relevant EU directives, in line with relevant interpretations adopted by the Court of Justice of the European Union (CJEU).
So the ECHR could, to some extent, provide an adequate substitute for the loss of the Charter, at least in relation to fair trials protections. The ECHR may also prove an easier pill for Eurosceptics in Britain to swallow. To their satisfaction, resistance to Strasbourg from the UK political and judicial establishment has risen to such levels in recent years21 that they probably now consider the Convention an easy target, especially in comparison to the more interventionist role that the CJEU was posing (in their eyes), as a result of the far more rigorous enforcement mechanisms that the latter possesses in contrast to the ECtHR.
The ECHR under attack
Post-Brexit Euroscepticism is, of course, anything but conducive to placing a renewed emphasis on the ECHR. The UK’s relationship with the ECtHR has become highly contentious in recent years, with Strasbourg decisions on prisoners’ rights, whole life tariffs, deportation of foreign suspected terrorists and the action of UK military forces abroad generating fierce criticism from sections of the press.22 In response to these concerns, and seeking to appease Conservative voters that might otherwise have been lured by UKIP’s strong anti-European rhetoric, the Conservative party published in 2014 proposals seeking to eradicate the effect of the Convention in the UK. The main ambition was to ensure that the ECtHR would ‘no longer [be] binding over the UK Supreme Court’ and would ‘no longer [be] able to order a change in UK law’, and that ‘a proper balance between rights and responsibilities in UK law’ would be restored.
In November 2015, a blueprint for the UK Bill of Rights was leaked to the Sunday Times, and it went so far as to suggest that ‘under the new system, judges would not have to follow rulings of the ECtHR slavishly any longer’, and that ‘instead, they [would] be able to rely on the common law or rulings by courts in other Commonwealth countries, such as Australia or Canada, when making their judgments’.
These proposals revealed ‘grave misconceptions about the nature of the European Convention on Human Rights (ECHR) and its relationship with comparative law, if not a cynical attempt to trivialise the effects of putting in place a UK human rights system à la carte’.23 It is unclear whether the government is still subscribing to such a view of the Convention; concern has consistently been expressed that this is practically a plan for an ECHR-minus.24
In the meantime, the UK continues to refuse to implement the judgment of the ECtHR in the case of Hirst v the United Kingdom (No 2) on the issue of prisoners’ rights to vote, delivered in 2005, which risks ‘undermin[ing] the standing of the UK’ and would also ‘give succour to those states in the Council of Europe who have a poor record of protecting human rights and who could regard the UK’s action as setting a precedent for them to follow’.25 Irrespective of how controversial the topic has proved to be, this is another illustration of the UK backtracking on its international human rights commitments instead of leading in Europe.
In light of the above, it is perhaps more convincing to predict that leaving the EU Charter and EU law risks creating momentum for a simultaneous exit from the ECHR, rather than contemplate the opposite, more specifically that a newly discovered confidence in the ECHR would somehow counterbalance the loss of rights that would have been afforded with the EU directives. Conor Gearty’s acute warning captures this beautifully: ‘Now that the larger European entanglement has been successfully seen off, the time has come for finishing the unfinished business of human rights destruction’, he notes,26 bringing the two main targets of British Euroscepticism – EU membership and the ECHR – alarmingly close to each other.
Now if this worrying prediction is correct, then the UK is heading straight to ‘a potential human rights legal deficit’, where – without the legal protections afforded by both EU law and the ECtHR, and in the absence of a written constitution – access to rights and remedies could be taken away without proper checks or safeguards.27
A written constitution and the UK Bill of Rights
It was perhaps with the threat of such a legal deficit in mind that Dominic Grieve has recently suggested – at a recent ‘Britain in Europe’ event – that ‘Parliament should consider whether the time is right to draw up a formal written constitution for the United Kingdom’. The former Attorney General explained that ‘the government’s position had become more nuanced of late, with its proposals not only directed at the Strasbourg court but also against the “predatory activities of the European Court of Justice in Luxembourg” ’. A written constitution, in combination with a Bill of Rights, ‘would allow the opportunity to define and protect rights constitutionally rather than via the ECHR’, so long as it were ‘compatible with our convention obligations’, he concluded. He emphasised, nonetheless, that the ECHR was ‘the single most important instrument for promoting human rights on the planet’ and a potential withdrawal of the UK would be ‘very damaging for the promotion of human rights elsewhere’.28
With a departure from EU human rights law now a foregone conclusion, the idea of a written constitution – combined with a national Bill of Rights – carries a lot of force. Whether there is any political willingness to move in this direction is another matter.
And this solution would still place the UK in the second league of human rights protections in Europe. Written constitutions and Bill of Rights are a common phenomenon there, and they normally enjoy a harmonious existence with international human rights law (they are supposed to complement each other). But such is the state of the debate on the UK’s international human rights obligations at the moment that even an imperfect – ECHR-minus – system, based exclusively on national law, has a lot going for it.
The UK government must abandon plans for a potential withdrawal from the ECHR and/or the repeal of the Human Rights Act. It must instead re-establish faith in the much maligned Convention, if we are to grapple with the looming threat of an unprecedented human rights legal deficit.
It must be added, as a postscript, that the threat of a human rights legal deficit is all the more present in the light of the debate on article 50. As Sandra Fredman argued in a comment on Miller:
‘human rights are already precarious if left in the hands of a sovereign Parliament, especially where, as in the UK, the legislature is heavily dominated by the executive’, but ‘this is even more so if Parliament can be sidestepped’.29
In protecting parliamentary sovereignty against such intrusions, the High Court judgment automatically provides a level of protection to human rights that, though minimal (compared to protection from international law), is nevertheless of critical importance. This is true in the current instance at least, when the government has said that it remains committed to replacing the Human Rights Act, and departure from the Charter of Fundamental Rights is imminent.
Acknowledgement: Dr Giannoulopoulos is indebted to Prof Ed Cape of Bristol Law School and Libby McVeigh, Legal and Policy Director at Fair Trials International, for reading and commenting upon an early draft.
This post represents the views of the author and not those of the Brexit blog, nor the LSE. It is an edited version of an article that first appeared in Britain in Europe’s Brexit: Opportunities, Challenges and the Road Ahead.
1. J Henley and P Walker, ‘Brexit weekly briefing: we’re going to be kept in the dark’, The Guardian, 13 September 2016.
2. The roadmap stemmed from the European Council’s Stockholm Programme for ‘an open and secure Europe’, which placed special emphasis on the idea of ‘a Europe built on fundamental rights’ as one of its basic tenets. Council of Europe, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, 2 December 2009, 17024/09.
3. See generally LEAP and Fair Trials, Defence Rights in Europe: The Road Ahead (2016).
4. V Mitsilegas, ‘The Future of European Criminal Justice’, paper prepared for the Commission Expert Group on EU Criminal Law Policy, 12 March 2014. See also T Konstadinides and N O’Meara, ‘Fundamental Rights and Judicial Protection’ in D Acosta Arcarazo and CC Murphy (eds), EU Security and Justice Law: After Lisbon and Stockholm (Hart Publishing, 2014).
5. European Council – Council of the European Union, ‘Legal aid in criminal proceedings: Council and Parliament reach an agreement’; Fair Trials – Legal Experts Advisory Panel, Position paper on the proposed directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings, February 2015.
6. See generally D Giannoulopoulos, ‘Strasbourg Jurisprudence, Law Reform and Comparative Law: A Tale of the Right to Custodial Legal Assistance in Five Countries’ (2016) 16 Human Rights Law Review 103-129.
7. Giving evidence before the Select Committee on Extradition Law, Baroness Ludford said characteristically: ‘I am sorry the UK has not opted into the directive on the right to a lawyer, because I think we have the gold standard on that in the EU and it is a pity that we do not show leadership on that particular measure.’ Select Committee on Extradition Law, Second report, Extradition: UK law and practice (2015) para 343. John Spencer was critical of UK ‘reticence about further involvement’ in EU criminal law. Focusing on the Roadmap rights in particular, he argued that the ‘UK should be taking a leading role in [their] creation’, since this was ‘an area in which the UK currently holds the high moral ground’; ‘[t]here is much in the current laws and practices of the UK that the US is entitled to be proud of, and in respect of which it is in a position to give a lead to the rest of the EU – and in particular, to those Member States in which these things are at present less well done’. All this was before Brexit, of course. J Spencer, ‘The UK and EU Criminal Law: Should we be Leading, Following or Abstaining?’ in V Mitsilegas, P Alldridge and L Cheliotis, Globalisation, Criminal Law and Criminal Justice – Theoretical, Comparative and Transnational Perspectives (Hart, 2015) 135, 147.
8. V Mitsilegas, ‘The Uneasy Relationship between the UK and European Criminal Law: From Opt-Outs to Brexit?’  Crim LR 517, 522. See also House of Lords, European Union Committee, ‘EU Police and Criminal Justice Measures: The UK’s 2014 Opt-Out Decision’, 13th Report of Session 2012-13, HL Paper 159.
9. Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, Recital 10.
10. Ibid., Recital 7.
11. Mitsilegas (n 8) 534.
12. See eg Ed Cape and J Hodgson, ‘The Right to Access to a Lawyer at Police Stations – Making the European Union Directive Work in Practice’ (2014) 5 New Journal of European Criminal Law 450.
13. Empirical research on suspects’ rights has time again brought to light very significant gaps in UK legislation and practice in relation to the exercise of custodial interrogation rights. See eg V Kemp and J Hodgson, ‘England and Wales: Empirical Findings’ in Vanderhallen et al. (ed), Interrogating Young Suspects: Procedural Safeguards from an Empirical Perspective II (Intersentia, 2016); P Pleasence, V Kemp and NJ Balmer, ‘The justice lottery? Police station advice 25 years on from PACE’  Crim LR 3.
14. Art 7(5) of the Directive states that ‘the exercise by suspects and accused persons of the right to remain silent or of the right not to incriminate oneself shall not be used against them and shall not be considered to be evidence that they have committed the criminal offence concerned’.
15. See, however, critiques of the power to draw adverse inferences, eg by Hannah Quirk, who has recently argued at the ‘Criminal Law Reform Now’ conference that ss 34-38 of the Criminal Justice and Public Order Act 1994 should be repealed and the common law right of silence reinstated. See, in more detail, H Quirk, ‘The Right of Silence in England and Wales: Sacred Cow, Sacrificial Lamb or Trojan Horse?’ in J Jackson and S Summers, Obstacles to Fairness in Criminal Proceedings (Hart Publishing, forthcoming).
16. See generally T Smith and Ed Cape, ‘The Rise and Decline of Criminal Legal Aid in England and Wales’ in A Flynn and J Hodgson (eds), Legal Aid and Access to Justice: Comparative Perspectives of Unmet Legal Need (Hart Publishing, forthcoming).
17. Cape notes that ‘until now the approach of England and Wales has been regarded as something of a model’, then suggests that, as a result of EU opt outs and backtracking on existing legal aid safeguards in the UK, this will no longer be the case. Ed Cape, ‘Criminal Defence: The Value and the Price’, Keynote speech to Law Society Criminal Law Conference, May 2013.
18. Concern over the failure of many Member States to observe the ECHR fair trial requirements with satisfactory consistency was one of the main reasons behind legislating the Roadmap Directives in the first place. See House of Lords, European Union Committee, Procedural Rights in Criminal Proceedings (2004-05) HL Paper 28, para 4.
19. The European Commission’s 2004 proposal for a framework decision on certain procedural rights throughout the European Union had the ambition to move EU law in this direction, but it soon ‘became clear there was no collective political will to agree the provisions and the proposal was reduced to little more than a letter of intent which held no compulsion or compellability’. See European Criminal Bar Association, Procedural Safeguards. But Strasbourg jurisprudence, starting with Salduz v Turkey (2008) 49 EHRR 421, turned the tide in favour of wider EU integration in this area.
20. In AT v Luxembourg Application No 30460/13, Merits and Just Satisfaction, 9 April 2015, at para 87, the ECtHR drew on the Directive on the right of access to a lawyer to conclude that the lawyer’s presence during questioning will not suffice for the right to fair trial to be respected, and that national legislation must also provide for private consultation with a lawyer prior to the beginning of the interrogation. In Zachar and Čierny v Slovakia Applications Nos 29376/12 and 29384/12, Merits and Just Satisfaction, 21 July 2015, the Court relied on the Directive on the right to access to a lawyer and the Directive on the right to information to decide that a waiver of the right to custodial legal assistance had not been effective.
21. Such as reflected in the cases of Hirst v the United Kingdom (No 2)  ECHR 681 and AlKhawaja and Tahery v the United Kingdom (2009) 49 EHRR 1 respectively.
22. See eg D Barrett, ‘Calls grow to boycott “toxic” human rights court’, The Telegraph, 9 July 2013.
23. D Giannoulopoulos, ‘The Bill of Rights leak shows draft plans are plainly flawed’, Solicitors Journal, 24 November 2015.
24. See generally Joint Committee on Human Rights, ‘A Bill of Rights for the UK?’, 29th report (2007-8) HL paper 165/II, HC paper 150-II.
25. Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, First Report, Executive summary, 16 December 2013.
26. C Gearty, On Fantasy Island – Britain, Europe and Human Rights (OUP, 2016).
27. K Boyle, ‘The legitimacy of the EU referendum requires that citizens are informed of the implications of their decision’. Democratic Audit UK, 2 April 2016.
28. See ‘Dominic Grieve QC: “It may be time to consider a written constitution” ’, Solicitors Journal, 4 March 2016. The full lecture is available to watch from the BiE website: ‘Former Attorney General warns of ramifications from leaving the ECHR’, 21 March 2016.
29 Sandra Fredman, ‘The Least Dangerous Branch: Whose Role is it to Protect Parliamentary Sovereignty? Miller and the Human Rights Implications of Brexit’ (OxHRH Blog, 7 November 2016)