WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
July 13 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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Leaving the ECHR: a solution in search of a problem?

Leaving the ECHR: a solution in search of a problem?

Pic: Patrick Maguire
Red Cell: Patrick Maguire from Proof magazine, issue 4

When it comes to threatening to leave the European Convention on Human Rights, the Conservative government has form. Since the Conservatives entered Downing Street in 2010, the possibility of leaving the ECHR and its interfering court of human rights (ECtHR) has rarely been far from ministers’ minds. In 2013, David Cameron, the then-prime minister, told Andrew Marr that leaving the ECtHR might be necessary in order to ‘keep people’ safe. Theresa May, then Cameron’s Home Secretary, followed this in 2016 by making a speech in the run-up to the referendum advocating remaining in the EU but withdrawing from the ECHR.

There was a brief pause as the country reeled from the decision to leave the EU, but now the threats are coming thick and fast. In October last year, Suella Braverman, then (and currently, after a brief hiatus) the Home Secretary, called for the UK to depart, following in the footsteps of her predecessor, Priti Patel. Unsurprisingly, Boris Johnson also got in on the act after the ECtHR paused his government’s Rwanda deportation policy. Add to this list Dominic Raab, Jacob Rees-Mogg, and Liz Truss, and finding a frontline Conservative politician who hasn’t blamed the ECtHR for something¬†becomes like searching for hens’ teeth.

Up until now, Rishi Sunak was one such tooth. The current prime minister’s proposal to leave the ECtHR this weekend was unexpected, if not, given the issue and the precedent, unsurprising. Since Priti Patel began the negotiations over the UK using Rwanda as an asylum outpost, the policy has a become a ditch the Conservative Party is willing to die in, up to and including abandoning a project partly put in place by Winston Churchill.

One common refrain that these various proposals have been met with is that the UK is overwhelmingly successful before the ECtHR. Even if the UK loses the Rwanda case, it is but one case set against the many in which the UK government has won. Why throw away all of the soft-power and influence that being a member of the Council of Europe gives the UK over an institution that barely tickles domestic policy? From a layman, this is a reasonable response. Why leave a court that, by any measure, you are overwhelmingly successful in front of?

The relationship between the UK’s government and the UK’s Supreme Court almost proves these critics’ point. When the judiciary was countering the decisions made in No. 10, there was frequent briefing against the courts from ministers and special advisers. Threats were made about reforming the judicial system or drafting new legislation to check ‘judicial overreach’, with the Conservative manifesto in 2019 going so far as to promise changes to the constitution. But the moment the Court gave rulings that seemed more onside with the government, these mutterings stopped. Either they had done their job, pushing the judges back into their box, or the government had adopted more lawful methods of going about its business. There is no such concern with the ECtHR. The judges on the ECtHR already seem to be happy inside their box, so why toss it around?

What this response forgets is that the UK government is not always a party in cases before the ECtHR, but it is – in some shape or form – bound by all their decisions. Under Article 46 ECHR, the only states legally obliged to follow a ruling of the ECtHR are those who were party to the case. Any other state is free to continue to as it was without violating the ECHR. But things are not quite this simple. The almost inevitable outcome of behaving in a way that is incompatible with a ECHR judgment – but that the UK was not party to – is that someone will threaten to bring proceedings, or the civil service lawyers will advise on the incompatibility, and the government policy come into line. If the UK tried to defend the policy all the way up to the ECtHR, unless the policy in an area where countries were given some discretion, the result would be inevitable – the policy would be found unlawful.

As well as all the other shocks that the UK’s departure would cause on the domestic and international planes, there is little doubt that it would broaden the policy options of ministers and their civil servants. This brings us to the more meaningful question. What policy options would the UK gain from being outside of the ECHR, and beyond the clutches of the ECtHR judges? For Rishi Sunak, the answer is obvious. If the ECtHR ruled against the Rwanda extradition policy, he would be able to continue with it anyway, and presumably hope to wrangle a few more votes from little-Englanders in the next general election. Illegal migrants and asylum-seekers would once more be deterred by the prospect of ending up in an autocratic state in central Africa.

Whether this would have any actual effect on the ground, however, is doubtful. The Rwanda policy is lawful for the moment, and it seems to have had next to no effect on the numbers crossing the Channel. Refugees massing at Calais will be lucky to have a barely functional understanding of UK asylum law, let alone a grasp of the relationship between the UK and the ECtHR. Regardless of how the Rwanda policy plays out in the courts, European or domestic, people in boats will keep coming. This is not just because the asylum-seekers don’t understand questions of its legality, but because their almost sole interest is staying in the UK, lawfully or otherwise. Unless hundreds, if not thousands, of people are being shipped off to Rwanda regularly,

Such a prospect is not likely, and not just because of the courts. The UK’s memorandum of understanding with Rwanda envisages a vanishingly few migrants being in Rwandan custody. Possibly a maximum of a few hundred. So long as this remains the case, people in Calais will look at the Channel and find that the odds after crossing are in their favour.

Nor does leaving the ECHR mean that the government will get a free pass in the domestic courts. While the current Supreme Court may be more deferential than I, and others, may like, this does not mean that it will always be this way, or that government policy will just get through on the nod. Many of the proposals of the Sunak government revolve around stripping asylum seekers of the right to appeal. This is almost certainly contrary to ECHR law, but is also likely to be contrary to the common law. Justices on the Supreme Court may be willing to let questions of law closely linked to political policy pass by, but they are less likely to do so on questions of law relating to the rights of due process and the right to appeal. Any attempts to shortcut this process, and get asylum seekers on flights to Rwanda, are almost certain to receive anxious scrutiny.

Much like leaving the EU, leaving the ECHR is a solution in search of a problem. Looking across the range of decisions made by the Court shows an institution aware of its position, and careful to accord respect to member states. France has been allowed to ban the burka, Hungary has seized much of the independent press, and we have immigration detention camps. Fundamental rights are not given primacy as a matter of course by the Court. Policies that the UK could pursue outside of the ECHR, but without running afoul of the domestic courts are few and far between. Couple this with the effort and controversy over leaving – to say nothing of the succour it would give to truly rogue states like Russia – and the policy seems practically pointless.

Of course, the modern Conservative party specialises in pointless, if not outright harmful policies, whether they touch on human rights, the economy, or state regulation. To Sunak and his compatriots, its futility may seem just another selling point.

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