Commentators frequently link the case law of the European Court of Human Rights in Strasbourg, which is an institution of the Council of Europe that hears cases brought against the signatory states of the European Convention on Human Rights, with the Court of Justice of the European Union in Luxembourg, which is the supreme court of the European Union. This linkage is based on a confusion.
- The Council of Europe and the EU are legally distinct entities – for example, both Russia and Turkey are members of the Council of Europe but not of the EU. Likewise, EU law is given effect within the UK by the European Communities Act 1972, whereas the Convention takes effect under the Human Rights Act 1998.
- Although there is a degree of overlap, in that EU law recognises the Convention as a source of fundamental rights within the scope of EU law, and new Member States must conform to the Convention as a condition of membership, UK departure from the EU would not lead to the departure of the UK from the Council of Europe or the repeal of the Human Rights Act 1998. As such, it would be a distinct issue for the UK Government if it wished to leave the Council of Europe or to repeal or amend the Human Rights Act 1998.
- Within EU law, the UK obtained confirmation that neither the Convention nor the EU Charter of Fundamental Rights (which gives effect to the Convention as well as a number of other rights in EU law) has any effect on the UK outside the scope of EU law.
- In any event, while UK public authorities frequently complain that their freedom of action is unduly restricted by the rights guaranteed by the Human Rights Act 1998, both the 1998 Act and the rights conferred by EU law offer significant protections to individuals and businesses to challenge oppressive legislation and public action.
- See, e.g., Case 36/75 Rutili  ECR 1219 – http://www.cvce.eu/content/publication/1999/1/1/fba5ff56-a872-4ae4-a8f2-a505ed57cb54/publishable_en.pdf; and Article 6 TEU – http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A12012M%2FTXT. ↑
- See Articles 6(1) and 49 of the TEU – http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A12012M%2FTXT. ↑
- Government policy on this issue is not entirely clear but appears to combine an intention at least to modify if not to repeal the Human Rights Act 1998 while insisting that withdrawal from the Council of Europe and Convention is ‘not on the table’: see, e.g., http://www.itv.com/news/update/2015-06-01/hammond-leaving-echr-is-not-on-the-table/. ↑
- See Protocol 30 to the TEU, on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom – http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A12012M%2FTXT.. ↑