 I'm very pleased again today to be joined by Professor David Feldman, who is the Rausbawr Professor for English Public Law. David, today we're going to discuss a little bit about human rights law, and could you tell me a little bit more about your expertise in this field to begin with? Well, I've been working on civil liberties and human rights in domestic law for 30 plus years now, and using international human rights law as a framework for evaluation of domestic law. Then when the EU began to develop fundamental rights principles, and the UK enacted later and quite separately the Human Rights Act, which makes it possible to get remedies for violations of rights under the European Convention on Human Rights in domestic courts. Of course, the European Convention is entirely separate from the EU and has nothing whatever to do with it. I started to become interested in those various separate interactions, the systems themselves and the interactions between them, and now we have a situation where the EU, the Court of Justice, makes use of the EU Charter of Fundamental Rights. General principles of EU law derived from the European Convention on Human Rights, but also from the constitutional traditions of the member states, the common constitutional traditions. Of course, most of the member states have constitutional traditions, which include a body of enumerated fundamental rights or constitutional rights. The body of fundamental rights in EU law is part of EU law as general principles of EU law, and that has effectively the same status as the treatise as part of the constitution of the EU. Then in the EU there was a Charter of Fundamental Rights, which the member states agreed in 2000, which was non-binding, and that was partly inspired by the European Convention on Human Rights, but went much further, whereas the convention rights are almost entirely individual rights and political rights, particularly things like freedom of expression, freedom from interference with private life and the home, and family life, freedom from torture, freedom from inhumane or degrading treatment or punishment, fair trial rights, rights not to be enslaved or subjected to for a whole range of things like that. The classic old fashioned human rights, what is sometimes called first generation human rights. The EU Charter that was agreed in 2000 was very much broader and included a whole range of very detailed equality rights, rights relating to disability age, what's sometimes called third generation rights, economic and social rights, collective rights, rights of people because of the groups that they belong to, rather than because of their own particular characteristics. In 2000 this very extensive range of rights was encapsulated in a Charter, but on the understanding that it wasn't going to be legally enforceable. What happened seven years later in December 2007, the Lisbon Treaty, when the new EU Treaty structure was put in place with the Treaty on European Union and Treaty on the functioning of the European Union, as part of that major overhaul of the EU treaties, article six of the Treaty on European Union provided for the Charter of Fundamental Rights, the EU Charter to have legal effect in EU law for the first time, and also to apply to member states when they were acting in the field of EU law. The UK and Poland, the Czech Republic, thought they had negotiated something of an opt-out from the applicability of the Charter in protocol 30 to the Lisbon Treaty, but it turned out subsequently that it didn't operate as an opt-out. We are, as the UK, subject to EU fundamental rights law when the UK is operating in the field of competence of the EU institutions. That means we have a body of these rights, both social and economic rights and political rights, which are binding on us through the doctrine of the primacy of EU law, which have effect within the areas of competence of the EU. Alongside the general principles, which I mentioned earlier, which are derived from the European Convention and other treaties to which the member states have contributed, plus their common constitutional traditions, and all of that operates as a binding part of EU law. That's in addition to the European Convention on Human Rights, which is a multilateral treaty binding 47 countries at the moment, with an adjudicative body purely in respect of human rights compliance, convention rights compliance, which is the European Court of Human Rights in Strasbourg. The European Court of Human Rights is the final authority on the interpretation and application of those convention rights. There is a link between the Convention and the EU, even though I said they're completely separate. The link is that, first of all, in the Lisbon Treaty and the TEU and the TFEU Treaty on the European Union, treaty on the functioning of the European Union, there are provisions which require the EU charter of fundamental rights to be interpreted so that it gives no less protection to the overlapping rights than would be provided under the European Convention. The Court of Justice of the European Union refers, when necessary, to the provisions of the Convention to make sure that happens. In the Treaty on the European Union, Article 6, there was a requirement that the Union as a whole should become a party to the European Convention. This would be rather odd in a way, because you don't normally get multinational organisations becoming parties to international treaties, and it would be particularly complicated given that all the members of the EU, the individual member states of the EU, are already parties to the Convention in their own right. But in fact, for a variety of reasons, eight or nine years on, the EU still hasn't become a party to the Convention. So we have this sort of situation where the EU institutions can refer to and should refer to Convention rights and Convention case law, but the two systems aren't meshed. Okay, so bearing all this in mind, what do you think the implication would be in the event of a vote to leave in the referendum? The immediate effect would be zero, because then, as we know, it would be a fairly long process of negotiating before a treaty was agreed to separate from the EU. If we reached the point where such a treaty came into force, we can probably assume that, for most purposes, EU law would no longer apply directly in the UK. When that happened, the EU charter of fundamental rights would no longer be applicable to the UK, except so far as any new treaty part of the separation treaty required it to be given effect. Now that might happen, for example, if we had an agreement to share a single market, so the single market rules would continue to operate. Do you think EU charter acceptance might be part of the negotiation process, part of the single market? I think it's quite likely that that would be so, and there are a number of areas in the charter relating, for example, to employment rights, which might be insisted on simply because if the UK's employers and exporters didn't have to comply with those, they'd have a competitive advantage relative to producers and commercial operations in other parts of Europe. So it's almost difficult to unbundle those rights from pre-movement rights? It's the principle, because the principle of applying the charter and also the general principles, which give rise to fundamental rights, is that they apply to states in areas in which the EU has competence. If there are areas following our leaving the EU where it was required that we should still observe EU rules, then it would be very difficult to see why the fundamental rights provisions should be separated from those. But that, of course, would be something that might be up for negotiation during the process of working towards an exit. Do you think it could be characterised as an exit being the start of a new revolution in fundamental rights for the UK, whereby we might implement our own Bill of Rights? Absolutely, and in fact this is something which is already under active consideration. One of the things that's dropped off the attention of the newspapers recently, if anyone still reads newspapers, is that the UK's Human Rights Act has been under active review for some years. The Human Rights Act, you remember, was a largely brainchild of the Labour government in 1997-98. It was the first time in 1997 that a government came into office with a manifesto commitment to implement in domestic law the requirements of the European Convention on Human Rights. It's not anything to do with the EU, just the convention rights as they apply to the UK. That was done in the Human Rights Act which came into force fully in October 2000. Just a few months, a couple of months before, then not legally binding EU charter what was agreed. The Human Rights Act makes it a legal requirement that public authorities normally should act in a manner compatible with convention rights. If a local authority or government department or probably a university or hospital fails to comply with your convention rights, then you can bring an action either to have the decision cost or to get damages if you've suffered loss, all the usual things. There's an exception for that if there's legislation which unequivocally compels the authority or a court to act in a way which is incompatible with the right, but the general presumption is that there's a legal obligation to comply. That's something which for various reasons the Conservative Party is becoming increasingly unhappy about, also some elements in the Labour Party. We very nearly lost the Human Rights Act in the aftermath of the 2010 election if the Conservatives had come into office without a coalition partner. We would probably have seen a review leading to significant changes to or repeal of the Human Rights Act. In the event because the Liberal Democrat coalition partners referred this, they wouldn't allow that to happen, the matter was referred to a commission and the commission was told to consider whether the UK should be given a bill of rights to replace the Human Rights Act. At that stage it was still assumed that the UK would remain a party to the European Convention in international law, whatever happened to the national law. We've been a party to the convention since 1950. We were one of the first signatories and so in international law the UK has been consistently committed to complying with these rights for 65, 66 years. So that wouldn't necessarily change irrespective of EU membership? It wouldn't change through EU membership, it would take a separate decision by the UK to ditch its commitment on the international plane to human rights through the convention. It's fair to say that the commission in 2012 came up with no clear recommendation, but the issue was parked until the 2015 election when the Conservative Party with a manifesto commitment to replacing the Human Rights Act with a bill of rights for the UK received a mandate to form a government on its own and since then for the last 14 months or so people have been beaming away in the Ministry of Justice working on something that may or may not replace or supplement or just appeal the Human Rights Act for domestic legal purposes. We'll still have the EU requirements which in some ways will be tied to the European Convention rights. We'll still have probably an international law obligation subject to the supervision of the European Court of Human Rights to comply with convention rights within our territory. But what might change is the way in which those rights are protected or as it may turn out to be not protected in domestic law in areas not falling within the competence of the EU. Now we're going to get, we're told a consultation paper in July about that and that'll keep us all happily occupied for a little while. My guess is that the changes will be possibly significant but not earth-shattering and a lot of what will be done will be largely cosmetic, but we'll see. OK David, so to conclude is there one particular aspect of fundamental human rights in the run up to the referendum that you feel could have been better communicated or subject to more debate? Yes. Discussion of human rights in this country is in popular terms very poor. There is a general failure by politicians, a lot of journalists and I have to admit even some of my students to distinguish between the different regimes for protecting and identifying human rights. And an assumption very often that the EU regime and the European Convention on Human Rights regime are the same. That is not so and I hope that the discussion that we've had in the last few minutes will have demonstrated that we really need to be much more careful to distinguish between the different systems for protecting fundamental rights or human rights at the international level through treaties like the European Convention on Human Rights at the supranational level through the EU's charter and also general principles of EU law and at domestic level partly through the Human Rights Act. But it has to be said also and this is something we haven't talked about the rich history of protection for civil liberties which exists in common law in England and Wales and also increasingly over the last few years a growing interest in whether there are some fundamental common law rights which courts could or should give particular protection to. So we shouldn't assume that simply because we lose, if we lose, one of the sources of rights or even two of the sources of rights that there will be a vacuum. And we may very well find that the consultation paper on a bill of rights which is coming out in a few weeks will suggest both new rights and new ways of protecting them. Thank you very much indeed for your time today. Thank you.