To Leave or Not to Leave? An Examination of the ECHR Debate
forbes.com
A current major debate in UK politics is the government’s potential withdrawal from, or modification to, the European Convention of Human Rights (ECHR). Backbench Conservative MPs, Cabinet Ministers, and even the Justice and Home Secretaries have previously voiced their support for a reform of the UK’s relationship with the ECHR, and the court that interprets and applies it, the European Court of Human Rights (ECtHR). Recently it seems that the Prime Minister has come around to the idea, with proposals to withdraw or alter the UK’s relationship with the ECHR and ECtHR sparking concern amongst politicians and the legal industry alike. But what exactly are these plans, and what do they mean for the UK?
The idea behind these proposals is not new; in 2013, David Cameron suggested that the UK should withdraw from the ECtHR, and in 2016 this sentiment was reiterated by Theresa May. It is only recently, however, that politicians have again taken up the argument that the ECtHR is harmful to British self-interest, largely due to the Court’s last-minute injunction against the Rwanda Plan deportations last year.
Some Conservative politicians see the ECtHR as an infringement on Parliament’s sovereignty and resent the limits it can impose on the Government, and seek to withdraw from the ECHR as a way to avoid perceived interference in the Government’s policies. However, opponents to the plan see the ECHR and the Court as an essential protection from executive abuses of power.
One method of curbing the Court’s perceived power is through a new Bill of Rights, which would replace the Human Rights Act 1998 (HRA). Currently, under the HRA, UK courts are directed to “take into account” Strasbourg jurisprudence when interpreting the Convention rights domestically. According to the Government, the new Bill would provide a “new framework to implement the European Convention on Human Rights”. This wouldn’t necessarily mean a withdrawal from the Convention, but could allow the UK Parliament, through its own legislation, to disregard the Court’s interpretation of a right as enshrined in the Convention. Furthermore, the Ministry of Justice claims that the Bill would “strengthen domestic institutions and the primacy of UK law” and “encourage courts to take a more constrained approach to interpreting Convention rights”. This is perhaps worrying – does this imply that the Ministry of Justice wants to ‘constrain’ the exercise of rights provided for in the Convention?
The Bill seeks to make the UK Supreme Court the “ultimate judicial arbiter” with regards to human rights policy, in theory restoring the UK’s legal supremacy. However, if the government was to pass legislation that was deemed incompatible with the ECHR, after the passage of the Bill the Supreme Court would refer a “declaration of incompatibility” to Parliament who, only on the initiative of the government, would set about rectifying this. Does this not detract from the rule of law and make the government the final arbiter of its own laws?
The Law Society of England and Wales has expressed its opposition to the proposals, citing damage to the rule of law, increased difficulty in protecting rights, and preventing access to justice as key concerns. The Society believes that the current Human Rights Act (which enshrines the ECHR into UK statute) “strikes the right balance between the democratic powers of the executive, parliament and the courts”, and thus no further reform is needed. Others share the Society’s concerns, with some calling the Bill “draconian” and even labelling it a “rights removal bill”.
The consequences of withdrawing from the ECHR could indeed be severe, with concerns raised over less judicial oversight of the executive, weakening human rights protections. Further, the issue of destabilising the Union has been raised, as the ECHR was incorporated into Northern Irish law via the Good Friday Agreement. John Major, former Conservative Prime Minister, has opined that leaving the Convention would leave the UK in “pretty rum company”. This alludes to the fact that the only other countries to have withdrawn from the ECHR are Russia and Belarus. Do we really want to be compared to two dictatorships where concerns for human rights are minimal, to say the least?
To place this proposal within the Government’s larger policy context, perhaps their ECHR proposals can be seen as a part of a larger ‘Brexit wave’ of ‘reclaiming sovereignty’ for the United Kingdom. However, this political argument has legal implications, and human rights cannot be collateral damage to politics.
The Bill has not yet had its second reading, and no date is set as of yet, but the Government must ensure that, whatever happens politically, human rights are suitably protected by primary legislation. Whatever happens in Parliament or during campaign speeches, human rights must remain above politics. The ECHR is embedded into our constitution via the Human Rights Act and provides crucial safeguards against arbitrary power, and leaving the Court, the Convention or both without an adequate replacement would irrevocably weaken them. Britain’s uncodified constitution leaves Parliament as sovereign, but also allows more room for executive action, which only underlines the necessity of safeguards. Whether or not we withdraw is a political discussion, but either way, legal safeguards on human rights are necessary; if we do withdraw, I hope the new Bill of Rights can provide them.
by Callum Tilley