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The European Convention on Human Rights: leave or stay? You decide

The question of whether to leave or stay in the ECHR is live again (when is it not?)

The Strassbourg Court
The European Court of Human Rights, Strassbourg, where the ECHR is interpreted.

The question of whether to leave or stay in the European Convention on Human Rights (ECHR) is live again (when is it not?). Of course, this is fundamentally a political question, not a legal one. But as a lawyer both inside and outside government I have had close experience of the ECHR and of the Human Rights Act 1998, which gives effect to it in our national law. And everyone else is weighing in on the subject, so why should I be left out?

Article 58 of the ECHR says that states can “denounce” (i.e. leave) the Convention by six months’ notice. The decision whether to stay or leave is not a choice between democracy (or national sovereignty) on the one hand, and participation in an international rights treaty on the other hand. Sovereign democratic states can, and obviously do, choose to sign up to international treaties and agree to abide by their terms, thereby voluntarily limiting their freedom of action domestically. Equally, states are capable of protecting human rights without participating in international conventions. The balance of pros and cons is more complicated than that.

So if you are wondering whether the UK should stay or leave the ECHR, here are some questions you might think about.

What has the ECHR ever done for us?

Has it been a force for good or ill? After all, the question is not whether to create or join a new organisation. We have decades of experience of the ECHR. We helped draft it and have shaped its evolution ever since. It has profoundly influenced the protection of rights in the UK – in areas including the treatment of homosexuals, corporal punishment in schools, the protection of journalistic sources and the treatment of internees in Northern Ireland.

Those cases were brought precisely because the rights in question were not, at the time, protected by the common law or statute law in the UK. Every time the government loses a case in the European Court of Human Rights in Strasbourg (or indeed in our domestic courts under the Human Rights Act) it is being told to do something it would rather not do, or vice versa. You may not welcome all those rulings. Some remain controversial, for example on the territorial scope of the Convention and its application to overseas military operations. Both sides arguably made a meal of the prisoner voting cases.

But whatever the home secretary, Suella Braverman, may say, it is not just criminals who benefit from the Convention. The ECHR has protected the rights of whole categories of people who, at the time, would not otherwise have enjoyed such protection. The government itself relied – though unsuccessfully as it turned out – on Article 8 (the right to respect for private and family life) as an argument for preventing disclosure of Boris Johnson’s WhatsApps to the Covid inquiry.

Of course the point of the ECHR is that it is an international treaty which has affected the treatment of human rights in other states too. I touch on that below.

What would replace it?

We have recent experience of leaving an international organisation with no settled idea about what would happen next. What if we left the ECHR?

One proposal is to replace it with a national code of human rights, set out in an act of parliament. Those rights might look very much like the rights in the ECHR: the only difference is that they would now be enforced solely by our national courts, not by the Strasbourg court. In other words, not much might change.

But that is only one proposal. The decision would be up to parliament – in practice, the government of the day. The government might decide to make changes to the scope or content of particular rights. The rhetoric from the current government is that the ECHR has gone too far, so the whole point of leaving would be to restrict the scope of some rights. Even Dominic Raab’s ill-fated Bill of Rights Bill, which was based (however reluctantly) on the assumption that the UK would stay in the Convention, tried to restrict the application of Article 8 in deportation cases, and to prevent the bringing of claims in relation to overseas military operations.

It might be said that a national code of rights would include new “British” rights, or extend the scope of the existing ECHR rights. I wouldn’t get your hopes up. Of course we don’t need to leave the ECHR to do that anyway. But Raab’s Bill of Rights Bill certainly didn’t contain new rights: the nearest it came was to provide for a “right” to trial by jury… but only in cases where legislation otherwise provides for trial by jury.

Some might argue we don’t need a statutory code of rights at all, but that the common law is quite capable of protecting fundamental rights and of evolving as society changes. That is an unreal view. The common law, left to itself, did not prevent corporal punishment, or discrimination against gay people, or mistreatment of internees during the Northern Ireland conflict. It can’t be supposed that the (UK) judges alone would or should be left to decide how rights should be developed and protected if we left the ECHR. That would be for parliament to decide. And parliament could change its mind at any time – to replace one 'Bill of Rights' with a new one, or to override individual rights in, say, the next Immigration Act.

You might say: that would be democracy and parliamentary sovereignty in action. But it means that any promise or prediction about what might replace the ECHR in domestic law should be treated with scepticism. And what would that uncertainty mean for minorities, including those who might have voted against the government of the day, or be out of favour with it?

What about the Good Friday Agreement and the Trade and Cooperation Agreement?

The Belfast/Good Friday Agreement – a key instrument in creating peace and stability in Northern Ireland – includes participation in the ECHR as one of the required “safeguards to protect the rights and interests of all sides of the community”.

The Convention is also baked into the UK-EU Trade and Co-operation Agreement: in particular, the UK’s denunciation of the ECHR would be a ground for the EU to terminate the part of the TCA on law enforcement and judicial cooperation in criminal matters.

Thus leaving the ECHR would imperil both stability in Northern Ireland and the UK’s relationship with the EU, at least in criminal justice matters. Would you ignore those consequences, try and negotiate your way out of them (good luck with that), or just cross your fingers?

What about the wider international implications?

It is obvious that the UK’s withdrawal from the ECHR would be seen internationally as a negative step. It would involve leaving the Council of Europe, which is responsible for the Convention and has had a far-reaching influence on the protection of human rights internationally. We would, obviously, no longer have a say in the development of the ECHR or its case-law. It would thus be a sign that we no longer cared about the upholding and developing of rights beyond the UK. It would hugely weaken the UK’s voice and influence on those issues, at a time when individual rights are threatened around the world.

Businesses and investors too depend on a stable human rights framework – for example for their own property rights, and for the employment and social standards they are expected to meet. How would they be affected by a decision to leave the ECHR and the uncertainty which might follow?

Could the ECHR be improved?

Like any human institution the ECHR is imperfect. Changing any international treaty is difficult, but it can be done by agreement between the members. Over the years, the parties to the ECHR have agreed 16 protocols changing aspects of the Convention and its operation. If the government wanted to make further changes it could argue for those from inside. The UK also has the opportunity of presenting arguments in individual cases about how the ECHR should be interpreted and the Strasbourg case-law should develop.

One particular bone of contention has been the court’s use of interim measures under rule 39 – a form of interim injunction – including recently to prevent the initial removal of asylum-seekers to Rwanda. Whether or not such measures were originally foreseen by the Convention, they now form an established part of the court’s jurisdiction. There is good reason for that: it is normal for courts to have power to make interim orders to “freeze” the position pending a final ruling – particularly where there is a risk of irreparable harm (even death) in the meantime.  

But there is scope for improving the rule 39 procedure: for example by allowing the relevant national government to make (urgent) representations before a ruling is made, and requiring a reasoned judgment from a named panel of judges (rather than a single anonymous judge).

What would be the consequences for domestic politics?

On this issue I’m just an observer. You may think it’s a good or bad thing that leaving the ECHR is likely to further split an already fractured Conservative Party (unless many within it change their minds). And those politicians used to blaming the ECHR and Strasbourg for policy failures would lose a convenient whipping boy. Instead every defeat would become the “fault” of our national law (the “Tory Bill of Rights” or the like) – and our national judges. Is it all worth the political hassle?

So, stay or go?

The debate will no doubt continue. It is not always an edifying one. It is not a good look to threaten to leave the ECHR if the Strasbourg court rules against you. Such threats themselves create uncertainty, instability and damage to the UK’s credibility. Before you make your own mind up, I suggest you consider the questions above – including whether, as well as “leave” or “stay”, there is an option of “stay and improve”. 

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