The Withdrawal Agreement and Article 3 of Protocol 1 to the ECHR: a question.
As we know, the WA provides that the U.K. remains subject to EU law in the transition period, including new law made by the EU Parliament and Council.
However, there will be no U.K. representation in the EU Parliament.
A3 Protocol 1 ECHR (part of the Human Rights Act 1998) says that “The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”
In Matthews v U.K., in 1999, the European Court of Human Rights looked at the position of a Gibraltar voter. At that time, Gibraltar had no vote in EP elections. webcitation.org/5lWx37qMR?url=…
The ECtHR found that the the U.K. was in breach of A3P1. That was because the EP was a real legislature for Gibraltar, making law that was supreme over 🇬🇮 law. And Mrs Matthews had no vote for it.
It was no answer, said the ECtHR, that EC law, agreed by the U.K., omitted to provide for votes for those living in 🇬🇮 . The U.K. agreed to sign up to those rules and agreed to have EC law applied to 🇬🇮 . The U.K. was answerable for having so agreed.
That raises an interesting question: by signing the WA including the agreed transition arrangements, wouldn’t the U.K. be in breach of A3P1? In essence, every U.K. voter is deprived of a vote in the legislature which will (still) be making supreme law in the U.K.?
Nor (probably) is there any EU remedy: the EU charter protects the right to vote in the EP for all EU citizens. But we won’t be EU citizens.
I throw the thought open to legal Twitter: but at first blush there seems to be an argument that the U.K. would be in breach of its ECHR obligations if if it signed up to the WA, and that any Act implementing the WA would be incompatible with the ECHR.
And there could be some MPs, or ordinary voters, ready to try to get an appropriate declaration from the courts on that.
