Rights in three dimensions

The Society and the Faculty of Advocates launched the second year of their European law training course Schuman 2000: European Law in the new Millennium with a seminar by Aidan O’Neill QC on Human Rights.  We are pleased to be able to publish extracts from the seminar which highlighted with the coming into force of the Scotland Act and the Human Rights Act, a new potential for conflict between the requirements of Community Law and respect for the directly effective provisions of the European Convention on Human Rights.

The European Union and the ECHR

There is now no doubt that the central Community institutions are legally bound to respect fundamental rights in all their activities.  Article 6(2) (formerly Article F) of the post-Amsterdam Consolidated Treaty on European Union provides that:

• “the [European) Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”

Article 46(d) (formerly Article L) of the European Union Treaty specifically gives the Court of Justice jurisdiction to interpret and apply this fundamental rights provision as regards “action of the [central Community] institutions” in the same way as the Court already has jurisdiction over them under the Treaty of Rome.  Although this is a recent treaty alteration and came into effect only on 1 May 1999, in practice it makes little if any difference to how the Court of Justice operates.  The Court has claimed since the late 1960s the ability to review the acts of the Community institutions on fundamental rights grounds, even in the absence of any Treaty provision to this effect.

The question as to the degree (if any) to which the Court of Justice may properly act as a human rights courts in relation to the activities of the Member States remains a vexed one however.  There is no specific Treaty provision giving the Court of Justice jurisdiction in this regard and indeed Article 6(3) of the Treaty on European Union provides that “the Union shall respect the national identities of its Member States.”  The Court of Justice has, however, by a process of “creeping pre-emption” apparently claimed to itself such power of review of Member State action on the basis that it is applying “general principles of Community law”, among which it includes the protection of human rights.  From the mid-1980s on the Court of Justice increasingly began to use the language of fundamental rights, such as freedom from discrimination on grounds of sex or of nationality, in relation to its assessment of the compatibility of Member State action with the requirements of the Treaty.  In 1989 the Court of Justice held, in the case of Wachauf v Germany (Case 5/88 [1989] ECR 2609], that when Member States were seeking to implement or enforce a Community derived provision, their actions could be subjected to the same fundamental rights review as the Court of Justice applied to the actions of the Community institutions.  The Court of Justice went on to hold in its 1991 Greek Television decision (Case C-260/89 [1991] ECR I-2925) that as soon as any national administrative decision or indeed primary legislation of the Member State sought to derogate from Community law, the Member State’s action was then “within the scope of Community law” and fundamental rights considerations could be used by the Court to consider and test the validity of the legislative and administrative actions of the Member State.

Arguably the most significant development in the case law of the Court of Justice in relation to human rights protection within the European Union was its 1996 opinion to the effect that under the Treaties as drafted the European Community lacks the legal competence to be able to accede as a body to the European Convention on Human Rights (Opinion 2/94 [1996] ECR I-1759).  The effect of this judgment would seem to be that, as far as the European Court of justice is concerned there are two final Human Rights courts in Europe - one based in Luxembourg as regards matters of Community law and another, based in Strasbourg, as regards non-Community law matters.  Are matters of Community law, then, to be seen as immune from review by the Strasbourg Court of Human Rights?

The European Court of Human Rights and Community Law

Initially it appeared that the Strasbourg institutions were content to accede to the claims of the European Court of Justice to sole jurisdiction in the matter of fundamental rights review of Community law issues.  However, the latitude accorded by Strasbourg to the institutions of the European Union may be changing in the light of the definitive rejection by the European Court of Justice of the possibility of accession to the Council of Europe by the European Union.  Thus in Cantoni v France (15 November 1996 RJD 1996-V, 1614), for example, the Court of Human Rights held that the fact that a national legislative provision at issue is based almost word for word on a Community directive did not relieve the Member State from the responsibility of ensuring that its law complied with the Convention.  And in Matthews v United Kingdom (unreported decision of 18 February 1999) the United Kingdom was held responsible by the European Court of Human Rights for the denial of voting rights to the European Parliament to British citizens resident in Gibraltar contrary to those individuals’ Convention rights under ECHR Protocol 1 Article 3 to participate in free elections notwithstanding that the extent of voting rights to the European Parliament was a I matter for the European Union institutions rather than for individual Member States.

This places the Member States in a difficult position.  They may be found by the Strasbourg Court to have breached the requirements of the Convention even where the matter at issue comes within the sphere of Community law and the Member State has no discretion or power to do other than what is required of them under Community law.  It would appear that in such a situation the Member State will be damned by the Strasbourg court if it acts in accordance with Community law but in breach of Convention rights, but it will be damned by the Luxembourg Court if it acts in breach of the requirements of Community law.

The matter is particularly acute for members of the Scottish Executive since Section 57(2) of the Scotland Act 1998 provides that they have “no power to make any subordinate legislation or to do any other act, so far as the legislation is incompatible with any of the Convention rights or with Community law”.  The legislative competence of the Scottish Parliament is similarly constrained under Section 29(2)(d) of the Scotland Act.

The assumption behind these provisions seems to have been that Community law and the European Convention will never be in conflict.  The Convention is accorded “special significance” by the Court of Justice as a particular source for Community fundamental rights (See Case C-299/95 Kremzow v Austria [1997] ECR I-2629).  There have, however, already been instances of divergences between the European Court of Justice and the European Court of Human Rights on the interpretation and application of rights derived from the Convention.  These include cases on the privilege against self-incrimination under article 6(1) ECHR, access to and confidentiality of legal advice under articles 6(1) and 8, the right to privacy under article 8, to free expression under article 10 and privacy and non-discrimination under articles 8 and 14.

It is not clear how divergences between the two European Courts on the proper interpretation of fundamental rights provisions might be resolved as a matter of strict law as there is no machinery for the formal reconciliation of their competing judgments.

Are national courts bound by the European Court of Justice on questions of fundamental rights?

The answer to this question depends, really, on whom one is asking and when one is asking it.  From the point of view of the European Court of Justice, the answer is obvious.  Within the sphere of Community law, the decisions of the European Court of Justice are supreme and over-ride any contrary opinion or national legislative provision.  National courts thus have an obligation to apply Community law in its entirety to the cases before them, including, it would seem, any judgments of the Court of Justice in fundamental rights matters (See Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, at paragraph 3).

But under the European Convention, national courts are regarded by the Strasbourg court as organs or emanations of the Contracting States, and therefore themselves bound, under Article 1 ECHR, to secure to everyone within their jurisdiction the rights and freedoms set out in the Convention and required, under Article 13 ECHR, to ensure that there exists an effective remedy against what the European Court of Human Rights consider to be violations of the Convention rights and freedoms.

We have, then, the makings of a potential constitutional crisis:

• Once the Human Rights Act comes fully into force, national courts, and public authorities generally, will be bound to uphold Convention rights (section 6 of the Act);
• From the point of view of the European Court of Human Rights, there will only be compliance with the Convention if the courts interpret and apply the Convention rights in accordance with Strasbourg jurisprudence;
• In matters of Community law, however, the European Court of Justice reigns supreme;
• If, in a question falling within the field of Community law, there is a conflict between the European Court of Justice and the European Court of Human Rights over the interpretation and effect to be given to a Convention right, the national court will be potentially be acting in a manner contrary to the Convention if it upholds the interpretation of the Luxembourg court, and in a manner contrary to Community law if it upholds the interpretation of the Strasbourg court;
• If the national court considers that Section 3(1) of the European Communities Act 1972 constrains it to act in a manner which it considers to be incompatible with the requirements of the directly effective provisions of the Convention it may make a declaration of incompatibility under and in terms of Section 4 of the Human Rights Act 1998, either in respect that interpretative provision of the 1972 Act or in relation to specific provisions of secondary legislation, for example national regulations implementing Community Directives, made under the 1972 Act.  Even if any such a declaration of incompatibility is made, however, the offending provisions still remain in full force and effect, the Convention rights remain breached.  Further, standing the decisions in Factortame ([1990) ECR I-2433, ECJ and [1991] 1 AC 603, HL) it would appear to be beyond the powers of the Westminster Parliament or Government unilaterally to alter the offending provision, at least while the UK remains a Member State of the European Union.
• If the national court restrictively interprets Section 3(1) of the European Communities Act 1972 so as to enable it to decide questions of Community law in accordance with its own understanding of the requirements of the Convention, it is arguably acting in breach of Community law and may open up the UK government to claims of Francovich damages (Joined Cases C-6,9/90 [1991] ECR I-5357, ECJ).
• In any event, since under the Scotland Act, neither Scottish Ministers (other than the Lord Advocate) nor the Scottish Parliament can be authorised by any particular Westminster statutory provision to act in a manner incompatible with the Convention rights or with Community law, the devolved administration and assembly will be bound by potentially incompatible judgments on fundamental rights of both the Luxembourg Court of Justice and the Strasbourg Court of Human Rights.

Thus, the domestic courts are impelled by the logic of the new constitutional settlement to be the final arbiters in any divergence on fundamental rights issues as between the European Court of Justice and the European Court of Human Rights.

The Court of Justice has now been presented with the opportunity to review its fundamental rights jurisprudence as a result of a preliminary reference from the First Division in Booker Aquaculture Limited v The Scottish Ministers (2000 SC 9, IH) a case in which a fish farming concern seeks compensation for losses resulting from the compulsory slaughter of stock on the orders of Scottish Office Agriculture, Environment and Fisheries Department.  It was agreed between the parties that the matter fell within the field of Community law in the sense that the regulations under which the Department was acting had been made in implementation of a Community Directive.  The interpretation of these regulations and the directive was therefore said to be subject to the general rules of the Treaty and in particular to the general principles of Community law, including the fundamental rights enshrined in Community law, among them a fundamental Community and Convention law right to respect for property.  The dispute between the parties was “as to whether, in determining compensation arising out of the application of the national measures implementing Community rules, the Member State is acting within the scope of Community law or within the area of its own competence”.  This Scottish case accordingly raises matters of fundamental constitutional importance for the whole of the European Union.  Its outcome is keenly awaited.