What would happen if the UK withdrew from the European Court of Human Rights?
3 March 2013
Today’s Mail on Sunday reports that the Home Secretary is to announce “soon” that the Conservative Party’s election manifesto for 2015 will include a pledge to withdraw from the European Court of Human Rights if the party obtains an overall majority.
I thought it would be useful to answer a few basic questions about what this would might mean for the UK. Bizarrely, the article appears alongside the Prime Minister’s opinion piece in the Sunday Telegraph promising that his party would not “veer right” and also “stick to the course we are on“. Talk about mixed messages. Anyway, let’s concentrate on Strasbourg. For a basic introduction to the Court and what it does, see my recent post: No, The Sun, the Human Rights Act is not the EU and David Hart QC’s A bluffer’s guide to human rights courts.
Is this new?
The short answer is yes. If the Conservative Party does announce a policy to withdraw from the Strasbourg court, that will be something new. But a qualification: I am a little hesitant about responding to the phoney war-type Sunday Mail and Telegraph articles. It has become something of a Saturday night ritual (if you like that kind of thing) for Twitter to explode in outrage over some new human rights “pledge” from a Conservative Minister which won’t even begin to effect us until 2015, and only if the Conservatives win an overall majority.
But although the Conservative Party has long argued for the repeal of the Human Rights Act (including Chris Grayling yesterday), and intimated that it may investigate the ‘nuclear’ option of withdrawing from the Strasbourg court, promising to withdraw from the Court represents a new direction.
Will leaving Strasbourg stop the courts preventing the removal of foreign criminals?
No. There are three main reasons for this.
First, the European Court of Human Rights only decides a fraction of the UK’s human rights cases per year – around ten. Only a handful of those are about foreign criminals or immigration – you can see the full list from page 16 of this Ministry of Justice document.
Indeed, the vast majority of human cases – including those involving immigration and extradition – are decided by our own courts. For proof, see the Mail on Sunday’s own ‘SCARY BLACK BOX OF SHAME’, that is the cuttings of previous headlines about courts stopping removals. None of the cases mentioned is a European Court of Human Rights case. They all relate to decisions by UK courts. The Human Rights Act 1998 gave local UK courts the power to enforce most of the European Convention on Human Rights. The idea was to ‘bring rights home’ and stop our rights law being forged exclusively in Strasbourg. That is what has happened, meaning that UK judges are largely deciding UK human rights issues.
If we withdrew from the Strasbourg court tomorrow, domestic courts would still carry on applying human rights law and taking account of (not following) decision of the European Court of Human Rights. Indeed, they are obliged to do by section 2 of the Human Rights Act. Of course, a Conservative may repeal the Human Rights Act too, but all indications are that this would be replaced by some kind of Bill of Rights which is likely to be similar to the ECHR but with a British twist. Indeed, the Mail reports that
The provisions of the European convention are already enshrined in British law in the Human Rights Act – but under Mrs May’s plan, the final right of appeal would be to the British Supreme Court, not Strasbourg.
Second, the European Convention on Human Rights is only one of a number of international conventions and EU (yes, those guys) rules which stop the UK from doing things like sending people back their home countries where they would face a real risk of torture or doing things which disproportionately affect children (even the children of foreign criminals). Withdrawing from Strasbourg would do little or nothing to untangle that web. Nor would we want to untangle it. I would be surprised if even staunch Daily Mail readers would be willing to withdraw from international conventions which outlaw torture or protect children, if given a well-informed choice.
Just as importantly, the EU is itself about to become a party to the European Convention, which means individuals may be able to bypass Strasbourg altogether and bring cases to Luxembourg (where the EU’s court, the ECJ is housed) instead – see this post for more.
The Mail on Sunday has again provided excellent evidence of this: the story below the main one, New outrage as Taliban suspect told he can stay, which begins “In a new human rights case to cause anger”, is not about a human rights case at all, but about the EU Refugee Qualification Directive – you can read the case report here. If we were to expunge all traces of the European Convention on Human Rights from our law, that Directive would still apply.
Third, if we did leave the Strasbourg court and the Supreme Court had the final say on human rights, don’t expect those judges to be charitable to the Government when it comes to interpreting basic rights, and particularly if they know that the right of individual petition to the Strasbourg court – a safety net in the current system – had been removed. Home Secretaries have felt unduly constrained by international agreements long before the Human Rights Act – see this cracking 25-year-old – judgment – but that doesn’t mean we should let Home Secretaries dictate which agreement we remain party to.
It is important to understand is that domestic courts are not bound to follow the European Court of Human Rights now, but judges take the view that if there is a principle arising from a consistent line of cases in the Strasbourg court and there is no particular conflict with UK law, they will follow it.
Our own common law has become bound up with and highly influenced by the case law of the European Court (following the case of Ullah, UK courts to do “no more” than Strasbourg “but certainly no less“). Judges don’t generally consider the Strasbourg court to be as barmy as some politicians would have us believe, and there is absolutely no indication at all that withdrawal from Strasbourg would alter this situation a great deal if at all: for more on the fusion of our common law and ECHR rights, see Dr Mark Elliott’s post as well as this on what our Supreme Court judges think would happen if the HRA were repealed.
What would happen to the UK internationally if it withdrew?
This is a bit of an unknown. It is a testament to how much of an outlier the UK would become if it withdrew from the Court’s jurisdiction that we don’t really know what the legal and political effects would be. Legally, the UK would probably have to withdraw from the European Convention on Human Rights – a treaty – completely since the court is so integral to the Convention system, as well as the Council of Europe, which it was instrumental in creating. States’ adherence to the ECHR has also become a central tenet of membership to other organisations such as the UN and the EU – see this article for more.
The UK would probably not become a ‘pariah’ as some claim, but that is a bit of a false argument. The test for whether the UK makes big international moves should not be whether we would become a pariah, but whether, on balance, it would be good for the UK.
Politically, the UK would be sending a clear signal to states which lose far more cases in Strasbourg, such as Russia and Turkey, that it no longer had confidence in the ECHR system. Whether you think that is a bad thing probably depends on your underlying theory of international relations and whether you think international institutions work in regulating the behaviour of states. In my view, you would have to be a very hard ‘realist‘ indeed to think that a UK withdrawal – particularly for arguably local political reasons such as in this case – would be a net positive for international human rights. I wonder what the Conservative Party Human Rights Commission, which promotes international human rights, would say.
Don’t play politics
There are many other dimensions to this debate which I have not covered, such as the irony of the Conservative party, whose lawyers were instrumental in drafting the ECHR in the first place and which traditionally has stood up for individual rights against the overweening state, could be the party which causes its eventual decline. Devolution also casts a long shadow over this debate. As the Bill of Rights Commission eventually figured out, the London Parliament’s options may be limited whilst issues surrounding Scotland, Northern Ireland and Wales remain unresolved.
Any justification for leaving must be balanced against the very significant signal which the UK would be sending to other states, that it has lost confidence in the European Convention on Human Rights. Moreover, leaving Strasbourg would arguably leave individuals in the UK in a weaker position against the state if their rights are breached.
With this in mind, the key question is whether withdrawing from the European Court of Human Rights will solve the problems which the Conservative party – and particularly the Mail and the Telegraph – have identified.
The answer is ‘no’. Withdrawal from Strasbourg is unlikely to make it easier to send foreign criminals back to their home states, particularly if they are facing torture or if their children are going to be unduly affected. Given that is the case, the stated justification for withdrawal falls away. What is left? That is ultimately for the electorate to decide, but an inchoate fear of European influence, an obsession with the expulsion of foreigners and the rise of UKIP, are certainly good candidates.
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Related posts:
- A bluffer’s guide to human rights courts
- No, The Sun, the Human Rights Act is not the EU
- The EU Charter: are we in or are we out?
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- Repeal of Human Rights Act would make no difference
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I don’t like the implication that human rights is somehow a leftist ideal only. In modern times, the left has done its best to try to erode free expression, our most valuable human right.
The problem with such a pronouncement lies in Article 58 of the Convention, or how to leave:
ARTICLE 58
Denunciation
1. A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months’ notice contained
in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties. 2. Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective. 3. Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a Party to this Convention under the same conditions.
Oh dear!. This means that the Court will still have jurisdiction over many issues for a long time to come. Let us suppose the Tories (with UKIP?) gain a majority or coalition, and denounce the ECHR, say in 2016 ….. So any case from 1950 to that date will get to the Court and the UK will have no say in the matter. So, the long shadow of the Court and the Convention would loom over a powerless UK, and how long might that be an issue – 10 years, 20, 30 …. It would be interesting to speculate the lesser issue, of repeal of the HRA 1998 even – what would our Courts do in such a situation? or even more, in an A58 situation?
One also turns to the Article the HRA1998 did NOT incorporate – A13, unlucky for some perhaps because it is the subsidiarity clause which requires us to set up domestic tribunals to consider breaches of ECHR rights. Why was it not incorporated along with A1-12 and 14? Probably the self-same reason we did not incorporate until 1998 – the supremacy of Parliament argument. The alternative mechanism is that if a UK judge makes a judgment but believes the law on which this has to be based breaches one of those 13 rights, s/he can issue a Declaration of Incompatibility which goes to the Minister responsible who must place it before Parliament which in its wisdom will decide what, if anything, to do about the matter. [Has one ever been issued since the HRA?] So, the easiest route would be for the UK to implement A13 which would mean even less cases going to Strasbourg. Shimple really.
As a member of the public and defintely not a bed wetting liberal as most on here seem to be, the problem I have is that it appears the judiciary do everything possible to circumvent the government and public wishes by interpreting the HR laws with a bias towards the right to a family life trumping everything else. The case of the Iraqi criminal a couple of years ago who ran over a school girl killing her and then fleeing the scene proves it. Just because he subsequently marries a UK women gives him a get out of jail card free according to the old leftie judge.
It’s little wonder that people get hot under the collar. But I guess it’s no big deal for you guys when you chat about it at your Hampstead dinner parties.
What ELSE would happen if the UK left the European Court of Human Rights? Lifting our gaze from our navel just a little, I’ll tell you what:
– a 60-year-old system of human rights protection covering 800 million Europeans – mainly in countries where the rule of law is weak and it is desperately needed – would be fatally undermined;
– countries such as Russia or Azerbaijan would be encouraged to ditch the Court as well, depriving millions of a “last hope of justice” and removing one of the few effective outside “checks” on how they treat their citizens;
– British politicians’ declarations of the need to uphold “fairness and justice abroad” would be revealed to be so much empty rhetoric;
– the UK’s long-term security would be deeply damaged since it would effectively mark an end to serious British efforts to help make Europe more stable, more well-governed and more democratic;
– it would suggest that the tragic lessons of the Holocaust and the other horrors of the second world war – which drove Sir Winston Churchill and other post-war statesmen to create this system in the first place – are starting to be forgotten, a chilling sign for the future…
Nice one, Theresa.
“For proof, see the Mail on Sunday’s …..” “The Mail on Sunday has again provided excellent evidence of this”
And then truth and knowledge simultaneously face-palmed.
Perhaps the reason why so many Conservative MPs are against the human rights legislation is because they are grossly unfamiliar with it. During the 2nd reading of the Human Rights Act 1998 (Repeal and Substitution) Bill on 1 Mar 2013 Conservative MP David Mowat MP unwittingly revealed that he had never heard of the United Nations Universal Declaration of Human Rights:
David Mowat (Warrington South) (Con): My hon. Friend is giving an eloquent defence but the logic of his position seems to be that we should not have a European convention on human rights or a Court, but rather a world convention. Is that his position?
Rory Stewart (Penrith and The Border) (Con): That is a telling intervention. The answer is that we have signed and ought to respect and uphold the United Nations universal declaration of human rights. It exists; we are signatories to it.
http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm130301/debtext/130301-0001.htm#13030165000002
I haven’t had such a good laugh at a Conservative MP since CATGATE.
Not sure about the vague claim about other treaties – what other treaty would really enable a UK judge to override a UK statute clarifying the right not to be tortured (fair enough EU law on refugees poses a problem, but the issue is starkest in non-refugee cases)?
We might not want to allow the UK government totorture, or to arrange or promote torture by other governments. But how does that add up to justifying a claim that the electorate are unfit to decide whether the right should be stretched to override normal deportation to the person’s own country on the basis that they might be tried there by their own courts in a trial that might allow evidence that might have been obtained by some other government by torture of someone else (somewhere else, at some other time)?
You don’t have to be a Conservative, or any species of right-wing little Englander, to believe that this scope point ought ultimately to be for a Parliament to decide, or that ECHR is defective in allowing ECtHR to decide where the boundary of its powers lies without any possibility of any Parliament coming back to clarify the intention. If we cannot get the Council of Europe to fix this, then is there really anything so wrong with looking at leaving and setting up our own version – in which Parliament sets down the principles behind the protection against torture, and can then come back to legislate again if judges extend the principles too far?
The more the pro-lobby dig in to claim that only ECHR plus HRA can deliver, the more the debate polarises, with the risk of pushing frustrated voters into the arms of a Tory-UKIP coalition. What about some constructive debate among non-Mail-readers where we can admit that there is nothing currently in the ECHR-HRA mechanism to stop ECtHR/UK judges expanding rights excessively and that some elected body ought to be able to legislate to rein it in – then we can discuss whether that is feasible at a Council of Europe level, whether mechanisms can be set up to allow member Parliaments that role, or whether an individual country has to leave if it wants that role for its Parliament.
I think speaking of the impact internationally, one also needs to consider that UK is a part of the EU, and there are constant attempts by the EC to ensure a harmonization of laws in the EU zone. True most of them focus on issues particularly related to trade and the free flow of goods and services, but I don’t think one can completely ignore the impact that a step like that would have on EU harmony. A majority of Europe looks to the UK as an example. And a step like this would just add to the unrest thats already being exacerbated by the Greek debt crisis and the generally slow recovery from the recession.
Also its a good point to note, as you mentioned, that just because UK may withdraw from the jurisdiction of the ECHR doesn’t change the law that UK has to enforce – The Human Rights Act already transposes the provisions of the Convention. So the Conservative argument then is what? Not that they don’t want to follow the same laws, but they only want National courts to interpret them? I again go back to my EU point – how then is this different from the functioning of the Court of Justice of the European Union (formerly known as the European Court of Justice) whose decisions are supposed to binding, or at least strictly guide National Courts in interpreting the Directives passed by the European Commission.
20 years on and the Late Lord Bingham is still spot on the money here:
http://www.scribd.com/doc/51045081/ECHR
Yes, though one has to smile at (or lament): ‘whatever their theoretical status constitutional measures of this kind are in practice regarded as enjoying a peculiar sanctity buttressed by overwhelming public support. If incorporated, the Convention would take its place at the head of this favoured list’
A slight confusion: this article says the HRA would remain in force were the UK to withdraw, and that Convention rights would thus continue to be substantially in force given that domestic courts make most Convention decisions. However, it later says that leaving the ECtHR would likely entail leaving the ECHR itself. In these circumstances, would the HRA continue to have legal effect? It would be bizarre to be in a situation where domestic courts were obliged to apply the case-law and articles of a court and convention with which the UK was no longer associated.
In these circumstances, as the article hints, would a ‘British bill of rights’ not be the inevitable outcome? And given the reactionary agenda underlying this push, is it not likely that such a bill would specifically exclude protection for ‘foreign criminals’ and the like? There seems a danger here that the EU’s tangential rights protection and various weak international agreements are left to enforce unpopular rights.
The HRA was a method of implementing the provisions within the ECHR into our domestic law. Leaving the ECHR/ECtHR wouldn’t have an effect on this, as the HRA is an entirely separate legal document. Plus, the HRA has become an intrinsic part of our legal system, so removing it purely because we no longer wished to associated ourselves with the European HR jurisdiction is very unlikely.
At least, that’s what I believe to be the case – if anyone has a definite answer please say!
Thanks for your comment, Alex – I’m not sure it’s quite that clear, though. The Act is drafted on the assumption the UK is signed up, so the position is indeed hard to discern. I’d start with the same assumption you do, but two things push the other way – firstly, s1(5)(a) allows only ratified protocols to be invoked. If Britain left the ECHR, which protocols would apply? Those in force upon leaving? A similar question applies to derogations under s14(1). At the least, these parts of the HRA would have to be amended, at which point the temptation to completely decouple it from the Convention may become, in light of other Tory soundings about its abolition, irresistible. Secondly, as I said above, is it possible for a country to be bound by national law to a charter they have rejected under international law?
As you say, though, we need a public international lawyer to answer this properly!
“is it possible for a country to be bound by national law to a charter they have rejected under international law?” Although the details would remain to be worked out, wouldn’t it be simply a matter of a) judicial interpretation of Parliament’s subsisting intentions, and b) judicial comity, within the parameters of (a)?
See A58 of the Convention. Yes, we would be bound on any matters up to the date of denunciation.
We need to cOMPLETELY remove ourselves from European Membership, and become the “Common Market” we forst signed up to.
The worst thing about this entire situation is that the three main cases of justification remain Hamza, Qatada and prisoner voting rights along with a handful of misreported propaganda pieces in the media that as pointed out in this article often have very little to do with the European Court of Human Rights. These negatives remain however a handful of trifles against an ocean of good positive work that the convention and the HRA are used for within the UK, and out of those three trifles, Hamza is long gone having been sent to the states, Qatada remains because of government incompetence (the Tories granted him asylum in the first place many moons ago in order to pump him for information yet seem to forget that when it comes to showing face for the electorate, and everytime they try to get rid of him they cock it up usually blaming it on judges and courts) and the prisoner voting issue which could have been dealt with easily in a way that could meet the requirements of ECHR obligations without having become the political football that it has. Meanwhile for the sake of a few votes the government are willing to use a mere handful of negative cases to justify expunging decades of positive law and disenfranchise millions who would likely sleepwalk into the governments hands on a diet of daily hate and sun rhetoric as those pamphlets push their own agendas usually in direct conflict with the interests of the country.
I take it you’ve heard of the Cadder case? A couple of hundred prosecutions had to be dropped, numerous appeals were raised and convictions quashed, because the UKSC decided it ‘had to’ follow strasbourg jurisprudence on the right of an accused to have a lawyer present when being interviewed by the police. So no, the examples you give are not the best reasons to leave the ECHR, disasters like the Cadder case -which effectively overturned centuries of Scottish jurisprudence- are. Frankly though its probably not enough, you’d also need a wave of new judges who aren’t used to following and accepting Strasbourg jurisprudence otherwise it will still be considered ‘highly persuasive’ or some such nonsense. The only reason Scots politicians and some lawyers are so Pro-ECHR now is because they effectively had to re-write their whole justice system to fit round it and don’t want it all to be for nothing. Sadly they miss the point, namely that the ECHR like EU courts will constantly move the goalposts so that what was previously ‘acceptable’ becomes unacceptable and not in a very long period of time either, whatever happened to legal certainty? Or is that principle only applied when it supports Human Rights campaigners?
By taking a pedantically narrow view on this, you rather confirm the fundamental complaint. It’s the suggestion that judges carry on regardless of the wishes expressed by Parliament that is at the crux of this.
If after withdrawing from the Court, or the Convention, or whatever other treaties are active in the area, judges decided to ignore the expressed will of elected representatives then we would have a very broken democracy indeed.
The basic complaint is that judges are making law and not following it, and that the widely-drawn language of human rights frameworks enables this. To imply politicians can’t do anything and that judges know best plays directly in to this.
The EHCR and other mechanisms are to our benefit because they protect us both in the UK and abroad; raising standards for all is in our self-interest. That’s the argument that wins over the Mail.
Yet don’t the themselves politicians ignore the expressed will of the electorate directly on occasion?
How about the Iraq War? Some of the largest mass protests against it in British history, low support in opinion polls despite lies from the government and also deemed illegal by the Attorney General (originally).
I might agree with you if our elected representatives fulfilled a much higher standard of representing the electorate than they do now.
Personally I consider the judiciary far more prudent (and honest) than parliament. I’m perfectly fine with the high courts reigning in government excesses. Maybe it isn’t part of our unwritten constitution but it certainly ought to be.
Scrapping the Human Rights Act would also not have any effect on EU law rights, such as those arising from the Zambrano case. There is undoubtedly a very poor public understanding of the difference, and if the Tories raise people’s expectations too much and don’t deliver, it’s unlikely to make them very popular.
I’d add I’m not sure whether Grayling and May are themselves the best case in themselves for the total unfettering of an already overweeningly majoritarian parliamentary system!!
if you’re a foreigner in this country, the first thing you have to do is respect our laws. If not, go back home !!!!!
What a shame for this country, we can’t do what we want. Who cares about criminals, are they going to be persecuted in their countries ? Who care ? they had a chance, they missed it. What can happened after with them, it’s their problem first, not ours.
So being a UK born citizen, I’m free to break them? Fantastic, thanks.
Are we judging being foreign based on native language skills? Because you sir, sound like a complete illegal…hand in your passport, that’s right P A S S P O R T
Given that the Scottish legal system has always been apart from England & Wales and that the EU convention on human rights was written into the rules governing the founding of the modern Holyrood parliament just how feasible is it for any right wing zealot at Westminster to withdraw ‘the UK’ from such legislation? I’d have thought it would be hard for London government to force such a move onto Scots law, which would lead to an even more ridiculous situation.
Perhaps it’s an indication that the Conservative leadership believe that Scotland will go independent in the referendum
Its time we used one of our own islands that are dotted around the globe as a Guantanamo the best option would be a prison on Ascension Island which is in the middle of nowhere & even more inaccessible
Other than the fact that this seems like something only Ming the Merciless of George Bush Jnr would envision, I am sure that the good people of Ascension would have plenty to say about their island becoming a notorious concentration camp.