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Published online by Cambridge University Press: 20 December 2023
The UK is a founding member of the Council of Europe and has played a leading part in its activities. But recent evidence suggests that the UK government may be under pressure to reconsider its traditional position, in particular in the wake of the Brexit decision.
TODAY
A recent disquieting sign was noted by the House of Lords EU justice subcommittee in January 2019. It pointed to a change in the UK government's wording of the post-Brexit Political Declaration agreed with the European Union. The draft declaration suggested the future relationship should incorporate the UK's commitment to the European Convention on Human Rights and Fundamental Freedoms. However, the final version released in November 2018 had changed the wording to a commitment to respect the framework of the Convention. Clarification supplied by the parliamentary under-secretary of state for justice simply stated that the government would not repeal or replace the act while Brexit was ongoing, but added, “It is right that we wait until the process of leaving the EU concludes before considering the matter further.”
“Considering the matter further” perhaps implies that it has had some consideration already. It certainly does not inspire confidence that the decision is already secure and that the UK will remain committed both to the Convention and – a fortiori – to the Council of Europe.
There are other straws in the wind that might give credence to some doubts on this front. The latest revision to the Protocols of the European Convention on Human Rights (Protocol 16) has neither been signed nor ratified by the UK. The UK is not alone in this, but it has a particular sensitivity about taking advice from what it might see as a “foreign” court, and this opens that possibility. Protocol 16 creates an optional system by which the highest national courts can seek advisory opinions from the European Court on the interpretation of the Convention. The UK government justified its hesitant position by stating it would observe “how the system operates in practice, having regard particularly to the effect on the workload of the Court, and to how the Court approaches the giving of opinions”.
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