Explainer Leaving the European Convention on Human Rights

 

Explainer

Leaving the European Convention on Human Rights

 

DATE

15 May 2024

https://ukandeu.ac.uk/explainers/leaving-the-european-convention-on-human-rights/

 

AUTHORS

Dr Alice Donald

Dr Joelle Grogan

 

THEME

Constitution and governance

 

Prime Minister Rishi Sunak has indicated that withdrawal from the European Convention on Human Rights (ECHR) could be on the agenda if the UK’s membership frustrates policy on illegal immigration or endangers national security. This follows an ‘interim measure’ from the European Court of Human Rights (ECtHR) in June 2022, which effectively prevented the first flight carrying asylum seekers from being sent to Rwanda until the UK courts had fully considered the issue, and the UK Supreme Court’s judgment in November 2023 that the Rwanda policy is unlawful.

 

Joelle Grogan and Alice Donald explain what steps the UK would have to take to leave the ECHR, whether states have left before, and what the likely consequences would be.

 

For an explanation of the ECHR see here, and for more information on the UK’s track record before the Court, see here.

 

What are the steps for the UK to leave the ECHR?

 

The European Convention on Human Rights is a treaty of the Strasbourg-based Council of Europe. Not to be confused with the European Union, the Council of Europe is an international organisation of 46 member states which was formed after World War II to promote democracy, human rights and the rule of law.

 

It is a condition of Council of Europe membership that states ratify (agree to be bound by) the ECHR. Thus, if the UK withdrew from the ECHR, it would probably also have to leave the Council of Europe. Likewise, a state that leaves the Council of Europe also exits the ECHR.

 

“To leave the ECHR and the Council of Europe, steps would have to be taken at both the international and domestic levels”

To leave the ECHR and the Council of Europe, steps would have to be taken at both the international and domestic levels.

 

At the international level, to leave the ECHR, a state must formally notify the Council of Europe of its intention to withdraw with six months’ notice. The UK would still have obligations arising from its membership before the notification became effective. Under international law, judgments issued by the ECtHR against the UK before its withdrawal would still have to be implemented.

 

At the domestic level within the UK, it is likely that the government would have to seek the approval of Parliament before notifying its intention to withdraw through an Act of Parliament.

 

Can the UK leave the ECHR without the approval of Parliament?

 

It is likely that parliamentary approval would be needed to leave the ECHR. The UK government normally exercises prerogative powers (executive power exercised without parliamentary consent) in the area of foreign affairs to, for example, enter into international treaties and to withdraw from them.

 

However, following both the legal and political precedent set by the Brexit process, the government is unlikely to be able to use a prerogative power to leave the ECHR (and Council of Europe) without parliamentary approval.

 

It is now a legal precedent that the government cannot use its prerogative powers in relation to foreign affairs to change domestic law or to ‘frustrate the purpose of any statute, suspend its operation, or remove statutory rights’.

 

“It is likely that parliamentary approval would be needed to leave the ECHR.”

As the Human Rights Act 1998 (HRA) gives effect to ECHR rights within the UK, and a large body of human rights law relies on it, leaving the ECHR without repealing the HRA would have the effect of ‘frustrating’ the operation of the Act.

 

It is therefore most likely that Parliament would have to pass an Act repealing the HRA, which would also provide parliamentary approval for withdrawal from the ECHR.

 

Has any state withdrawn from the Council of Europe before?

 

The only state ever to have withdrawn is Greece, which, facing expulsion due to abuses committed under military rule, left in 1970. Greece was readmitted in 1974 once democracy was restored.

 

Russia was expelled from the Council of Europe following the invasion of Ukraine in 2022. Russia and Belarus are the only European states outside the Council of Europe (Kosovo is also not a member, but its application to join is currently being considered).

 

Could the UK leave the ECHR but keep the Human Rights Act as it is?

 

No. The HRA incorporates ECHR rights into UK law. It cannot operate separately from the ECHR without removing references to the ECHR.

 

Which rights does the ECHR protect in the UK?

 

The Convention contains 14 articles, each representing a basic human right or freedom,  including the rights to life, to liberty and security, to a fair trial, to respect for private and family life, to freedom of expression and assembly, and freedom of religion and belief. It also prohibits torture and cruel or degrading treatment, slavery and discrimination.

 

Since its creation, member states have added extra rights to the ECHR. These have been in the form of ‘protocols’, and include the right to education, the right to free elections, and the prohibition on the use of the death penalty. Member states can choose whether or not to ratify the additional protocols.

 

Could a Bill of Rights replace the HRA?

 

Successive governments since 2007 have suggested that the HRA should be either reformed or replaced with a Bill of Rights out of concern that human rights were impacting politically sensitive areas (e.g. migration, security and anti-terrorism policies) or where a judgment by the European Court of Human Rights was seen as making a decision that should properly be up to Parliament.

 

These proposals did not involve plans for the UK to leave the ECHR. The vast majority of respondents to the two most recent government consultations in 2021 and 2022, were in favour of keeping the HRA and not introducing a Bill of Rights.

 

In June 2022, however, the then Secretary of State for Justice, Dominic Raab, introduced a Bill of Rights Bill which aimed to repeal and replace the HRA. The Bill would have significantly changed the means by which human rights are protected and enforced in the UK, making it harder for people to bring claims. The government clarified at the time that the UK would remain a party to the ECHR. The Bill failed to progress through Parliament.

 

Proposals have also been made to strengthen human rights protection in the UK, either via a Bill of Rights or other legislative means; for example, Parliament’s Joint Committee on Human Rights has proposed enshrining the right to protest and giving effect in UK law to other international human rights treaties such as the UN Convention on the Rights of the Child.

 

Royal Courts of Justice

 

Are ECHR rights already protected by the common law?

 

The term common law refers to the body of law made by the judiciary, based on custom and precedent, as distinct from laws passed by Parliament or regulations adopted by the executive. Rights which are recognised at, and rooted in, the common law include personal security, personal liberty and private property, along with the rights needed to secure them, such as access to justice. Common law principles include legality, accountability and open justice.

 

Certain rights, such as the rights to life, to a fair trial and to freedom of expression, are recognised both in the common law and in the ECHR. Significant human rights cases have relied on the common law; for example, on the prohibition of evidence obtained by torture. Thus, experts describe the common law and the ECHR as ‘distinct, overlapping and complementary systems for protecting human rights’.

 

However, the common law protection for human rights is not as extensive as that guaranteed by the ECHR. The ECHR, as interpreted by the ECtHR and by UK courts under the HRA, protects a broader range of rights than the common law has thus far recognised. For example, experts note that the ECHR alone offers redress to victims of crime who have been failed by state investigations or whom the state has failed to protect from harm, like the bereaved families of the Hillsborough tragedy and the victims of the ‘black cab’ rapist, John Worboys. The common law did not prevent children subject to corporal punishment or gay people facing discrimination who, prior to the HRA, took their cases to the ECtHR.

 

In addition, the HRA offers several forms of protection that do not feature in the common law. For instance, it allows higher UK courts to issue declarations of incompatibility when they find that a law cannot be interpreted in a way that makes it compatible with ECHR rights. Such declarations signal to ministers and Parliament that the law needs to be revised. Declarations of incompatibility have never been issued at common law.

 

Further, the HRA requires public authorities to respect Convention rights in their everyday actions and decisions, with the aim of preventing human rights violations, while the common law focuses more narrowly on the courts as the means by which rights can be protected, predicated on case-by-case decisions.

 

Another significant difference is that the HRA/ECHR system creates obligations under international and not only UK law (for example, to legislate compatibly with human rights and amend laws that breach rights), while the common law does not.

 

What would be the consequences for devolution if the UK withdrew from the ECHR?

 

Protection of ECHR rights through the HRA is embedded within the statutes through which devolved powers are exercised in Scotland, Wales and Northern Ireland. If the HRA was amended or repealed and/or a Bill of Rights was enacted covering the devolved nations, the devolution statutes would need to be amended.

 

The Joint Committee on Human Rights has said that, given the significant impact on the devolved settlements, the government should not pursue reform of the HRA without the consent of the Scottish Parliament, the Welsh Senedd and the Northern Ireland Assembly. Evidence submitted to Parliament suggests that such consent is unlikely to be given.

 

Overall, what would be the consequences for people living in the UK if the UK withdrew from the ECHR?

 

The impact of withdrawal on people in the UK would depend partly on what, if anything, replaced the HRA.

 

A new Bill of Rights could contain a catalogue of rights that was similarly or identically worded to existing ECHR rights. However, the most important factor would be how these rights would be protected in practice; for example, whether a new Bill of Rights would, like the HRA, legally oblige state bodies to uphold rights in all of their decisions and actions and allow higher courts to declare laws incompatible with human rights.

 

In all events, if the UK withdrew from the ECHR, people in the UK would lose the ability to take their case to the ECtHR if they do not get a remedy for a violation of their rights through the UK courts. Withdrawal would also mean that the UK would not be subject to the same kind of international scrutiny of its human rights record as it is under the ECHR, under which states review each other’s actions to ensure that rights are upheld across Europe.

 

The UK would continue to be part of other international treaties which enshrine the same or similar rights, including, for example, the International Covenant on Civil and Political Rights; however, these international documents have much weaker enforcement mechanisms and are not enshrined in UK law. This means that people in the UK would not necessarily be able to rely on them in court to protect their rights.

 

What would be the international consequences for the UK if it withdrew from the ECHR?

 

If the UK withdrew from the ECHR, there would be inevitable international consequences.

 

The Belfast/Good Friday agreement requires the ECHR to be part of the law in Northern Ireland. There is no way for the UK to leave the ECHR without violating the agreement, causing issues for the peace settlement in Northern Ireland, as well as the UK’s relationship with Ireland, the EU and the US.

 

Relations with the EU would also be further strained by withdrawal. The UK-EU Trade and Cooperation Agreement, which governs the post-Brexit relationship, commits both the UK and EU explicitly to the ECHR when it comes to human rights protection, particularly in security and judicial cooperation. The EU has stated that if the UK left the ECHR, it would terminate this part of the agreement, which could effectively stop, for example, the extradition of criminal suspects from the EU to face trial in the UK.

 

Experts also observe that withdrawal would be at odds with the UK’s Integrated Review of security, defence, development and foreign policy which refers to the UK’s commitment to international law and universal human rights.

 

Beyond this, the UK currently has one of the strongest records of compliance with the ECHR. Withdrawal would set a precedent for other countries with far worse records, and weaken the UK’s capacity to advocate for human rights internationally, as well as its reputation for holding itself and others to account.

 

Experts observe that withdrawal would also run counter to the UK’s strategic priorities, such as tackling aggression from Russia and China and supporting Ukraine. The government has stated its commitment to multilateralism, i.e. fostering international cooperation, through organisations such as the Council of Europe, to tackle shared challenges like terrorism, organised crime and climate change.

 

By Dr Joelle Grogan, Senior Researcher, UK in a Changing Europe, and Dr Alice Donald, Professor of Human Rights Law, Middlesex University.

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The European Convention on Human Rights (ECHR) plays a significant role in immigration law, particularly concerning the deportation of individuals and the right to family life. While the ECHR does not guarantee the right to enter or reside in a country, it does protect against actions that violate fundamental human rights, such as torture or inhuman treatment. This can create tension when immigration policies intersect with the ECHR, especially regarding the deportation of foreign criminals or individuals with family ties in the host country.

Here's a breakdown of the key points:

ECHR and Immigration:

No automatic right to enter/reside:

The ECHR does not grant individuals the right to enter or reside in a specific country.

States' control over borders:

States have the right to control the entry and residence of foreign nationals, subject to their treaty obligations.

ECHR as a safeguard:

The ECHR provides a framework to protect individuals from actions that violate their human rights, even within the context of immigration control.

Article 8 and family life:

Article 8 of the ECHR, which protects the right to respect for private and family life, is particularly relevant in immigration cases, especially when deportation could disrupt family ties.

Legitimate aims of immigration control:

States can justify interfering with Article 8 rights if the interference is lawful, necessary in a democratic society, and proportionate.

Balancing interests:

The ECHR recognizes that states have a margin of appreciation when balancing the rights of individuals with the interests of the community, including immigration control and public safety.

Challenges and Controversies:

Deportation of foreign criminals:

The ECHR's protection of family life can make it challenging to deport foreign criminals, particularly if they have established family ties in the host country.

"Sensible" and "proportionate" application:

There are ongoing discussions about how to ensure that Article 8 is applied in a "sensible" and "proportionate" way, balancing individual rights with the need for effective immigration control.

"Exploitation" of ECHR:

Some argue that individuals are "exploiting" the ECHR to avoid deportation, while others contend that the courts are already applying strict criteria.

Potential for reform:

Some governments are considering reforms to immigration laws and guidance to address concerns about the ECHR's impact on deportation.

Sovereignty concerns:

Some argue that the ECHR infringes on national sovereignty, while others emphasize its role in protecting fundamental human rights.

"Stopping the boats":

While some advocate for leaving the ECHR to address illegal immigration, legal experts suggest that withdrawal would not necessarily solve the issue of irregular migration, according to The Conversation.

Interim measures:

The European Court of Human Rights (ECtHR) can issue interim measures to prevent deportations, which has led to debate about the court's role and influence.

In conclusion, the ECHR plays a complex and sometimes controversial role in immigration law, particularly concerning deportation and family life. Balancing individual rights with the need for effective immigration control remains a challenge for governments and courts alike.