‘Quitters never win – the problems with leaving the ECHR’ – LabourList

This is the second of a series of three articles from the Society of Labour Lawyers outlining the arguments and issues around the UK’s relationship with the European Convention on Human Rights. You can read the first here.

Why are the Conservative Party and Reform talking about leaving the European Convention on Human Rights (ECHR)?

Many people on the reactionary right have never liked the fact that the ECHR (and Labour’s Human Rights Act that incorporates it into UK law) means that ordinary people can go to court to get an independent decision on whether bureaucrats, politicians – or sometimes newspaper proprietors – have infringed their basic rights. Recently, those opponents have been able to play on people’s concerns about immigration by pointing to the few cases in which some people have been able to resist deportation by relying on ECHR rights (and by making up stories about other cases where that is said to have happened). Others don’t like particular decisions of the European court of human rights (the Strasbourg court) on issues such as climate change and the right of prisoners to vote. Others just don’t like the fact that an international court plays any role in our legal system. And there are even some on the left who think, in my view misguidedly, that the ECHR could be a real obstacle to a socialist government’s economic policies.

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Could a UK government suspend or derogate from the European Convention on Human Rights (ECHR), as David Blunkett is suggesting?

The ECHR does not allow suspension of membership.  It does allow derogation from some ECHR rights, including Article 8 (the right to family life that is said to be an obstacle to immigration policy), in “time of war or other public emergency threatening the life of the nation”. It is however unlikely that either UK courts or the Strasbourg court would agree that the current immigration situation amounts to such an emergency.  In any event it is not possible to derogate from Article 2 (right to life) or Article 3 (right not to be tortured or made to suffer inhuman or degrading punishment), which can be reasons why in some cases deportation to some countries is unlawful – though the common law and other international law are also issues in such cases.

Could Parliament tell the UK courts not to follow Strasbourg court case-law, as Jack Straw is suggesting?

As a matter of domestic law, Parliament could do that.  But is hard to see what the point of that would be. Unless the UK withdrew from the ECHR, any person who had a claim that that they would have won in the UK had the UK court followed Strasbourg court case-law could then apply to the Strasbourg court, and the UK is bound under the ECHR to comply with that court’s judgments.  Unless the UK was prepared to breach international law by not complying with Strasbourg court judgments against it, the result would therefore be the same, but it would take much longer to resolve, and the UK would end up losing lots of cases in the Strasbourg court (at the moment it loses very few).

I’ve read Oliver Jackson’s LabourList article about how important the ECHR is to my rights.  But surely we could have our own British Bill of Rights if we left?

Advocates for leaving the ECHR sometimes promise a “British Bill of Rights” in its place, and point to countries outside the ECHR like Canada with its own Charter of Rights.  

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But you need to count your fingers after shaking hands on that one.  As I pointed out earlier, many opponents of the ECHR are simply reactionary. They oppose any charter of rights that ordinary people can use to go to court to challenge government decisions that fundamentally impact their rights to participate in our democracy or to live a life with dignity and respect.  And even those that want a “British Bill of Rights” often want it limited to rights such as property, while at the same time they want to abolish protections against discrimination or violations of privacy. Or they want to formulate “free speech” rights so that they protect speech by tech oligarchs, newspaper proprietors and their friends but not your right to protest against the government or the rich and powerful or your right not to have your private life plastered all over the newspapers. The reality is that a Conservative or Reform government that left the ECHR would be very unlikely to produce its own Bill of Rights – and even if it did it would be unlikely to give any protection to ordinary citizens.

What would a UK government need to do to leave the ECHR?

The ECHR requires six months’ notice to be given.  There would also need to be changes to domestic legislation. In particular the Human Rights Act 1998 would need to be repealed or radically amended.  In addition, as leaving the ECHR would affect the devolution settlements, the Sewel Convention would apply. That says that the agreement of the devolved legislatures will normally be obtained to such changes. But the Sewel Convention is not legally enforceable and did not prevent similarly profound changes during the Brexit process. There would be no constitutional requirement for a referendum.

What about the Belfast/Good Friday agreement (GFA)?

That does create a serious difficulty.  The GFA commits the UK to incorporate the ECHR into Northern Ireland law.  Though attempts have been made by right-wing think tanks to argue that that commitment would nonetheless allow the UK to leave the ECHR, those attempts are not plausible (see explanations here, here, and here).  Nor would it be possible for the UK to be in the ECHR only as far as Northern Ireland is concerned (and even if that were possible it would create a huge number of legal difficulties in practice).  As a matter of international law, therefore, the UK would have to persuade Ireland, the other party to the GFA, to amend the GFA so as to allow withdrawal. That is not something Ireland is likely to accept, particularly given the importance of the ECHR as a guarantee to the nationalist community in Northern Ireland.  And Ireland could count on EU support.

What could the EU do?

Large parts of the Trade and Cooperation Agreement (TCA), dealing with matters such as cooperation in security and judicial matters (such as extradition of suspects and sharing of security-related information) could be suspended at once by the EU if the UK left the ECHR.  And the EU could also terminate the TCA as a whole with a year’s notice.  That would put the UK on “no deal” terms with the EU, and would cause huge economic damage.

What other problems would there be?

As explained here, the ECHR, and membership of the Council of Europe that stands or falls with it, underpins, expressly or by implication, a large number of the agreements with our neighbours that are important or essential to the security and prosperity of UK citizens.  To take some obvious examples, it is hard to see that France, the Netherlands, or Germany would be interested in cooperating with the UK to stop small boat launches, or to take back those who have arrived on small boats, if the UK has left the ECHR.  

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It is obviously true that human rights are respected and protected by lots of non-European countries outside the ECHR. But they are not in Europe and do not need the extensive and routine cooperation with other European countries that the UK does (among other matters, in immigration control).  Quite apart from the fact that (as Adrian Berry KC will explain in a further article for LabourList) the ECHR has a very limited impact on immigration, the reality is that from an immigration control and security perspective leaving the ECHR would be a massive act of self-harm.

This all sounds a bit like Brexit.

It does!  And precisely the same people who spun fairy stories about how easy it would be for the UK to leave the EU and how there would be no difficulty in trading with the EU as a result are now spinning fairy stories that leaving the ECHR would be easy and lead to no repercussions.  No-one should believe them.  As the old saying has it “fool me once, shame on you: fool me twice, shame on me”.

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