Human rights: UK ministers continue to discuss drastic step of leaving ECHR

Lucy TrevelyanWednesday 11 October 2023

The UK Home Secretary, Suella Braverman, has reiterated her desire to leave what she calls the ‘politicised’ European Court of Human Rights (ECtHR), which implements the European Convention on Human Rights (ECHR). Given the ECtHR has the power to overturn domestic policy if it breaches the fundamental human rights outlined in the ECHR, Braverman and some other government ministers see it as a threat to the UK government’s sovereignty, particularly in regard to immigration policy.

For example, the government’s controversial policy of sending asylum seekers to Rwanda was set back by the ECtHR’s use of Rule 39 injunctions, while in deciding against the government in a case concerning the Rwanda policy in June, the UK Court of Appeal drew upon the ECHR. ‘In ruling that the Rwanda policy was unlawful, the [UK] Court of Appeal found that sending any asylum seeker to Rwanda would constitute a breach of Article 3 of the [ECHR], which prohibits torture, inhuman or degrading treatment or punishment’, explains Mark Guthrie, a human rights lawyer and a consultant at Red Lion Chambers in London. The case will now go before the UK’s Supreme Court.

Meanwhile, the UK’s Illegal Migration Act 2023 – introduced primarily to prevent migrants entering the country across the English Channel via ‘small boats’ – also puts the country on a collision course with the ECtHR. The new law allows for those who arrive in the UK illegally to be detained and then deported. The legislation has given rise to concerns from bodies such as the Law Society of England and Wales, who say the Act ‘may be incompatible with [the UK’s] international obligations under the European Court of Human Rights and the UN Refugee Convention’.

‘If we are thwarted by the courts, or indeed by Strasbourg [home of the ECtHR], then we will have to do whatever it takes, ultimately, to ensure we can stop the boats’, Braverman said in late August. However, although Prime Minister Rishi Sunak has asked the ECtHR to reform the clause that allows for interim measures, in early August a government source was quoted as saying that the UK government’s ‘Stop the Boats Act will deliver the changes necessary to reduce the incentives for people to risk their lives through illegal crossings while remaining party to the ECHR’.

[A] threat to leave the ECHR seems anachronistic and contrary to consolidated global strategies, policies and regulatory frameworks

Roberto Randazzo
Newsletter Officer, IBA Business Human Rights Committee

The threat to withdraw is extremely dangerous, and the implications would be profound and far-reaching, says Roberta Haslam, an immigration partner at Bindmans in London. The UK currently has no alternative codified legislation enshrining human rights law in the UK, with the discussion of a proposed ‘bill of rights’ on hold. ‘Those living in and entering the UK would be left without the protections offered by the ECHR, an internationally recognised and respected Convention, and oversight by an international court’, explains Haslam.

To depart from the ECHR would isolate the UK on the international stage, at a time when leaving the EU has already undermined the country in this respect, she says. ‘It would undermine the UK’s role on international human rights issues and would also risk destabilising the UK, with the ECHR playing a fundamental part of the Good Friday Agreement and the Northern Ireland Protocol.’ 

There would be a substantial impact on both lawyers and their clients, with the former left without key tools to protect their clients’ fundamental rights and freedoms. Haslam explains that the rights affected concern everyone and aren’t solely related to immigration and asylum. ‘The ECHR was established to promote freedom, democracy and human rights, and provides far ranging rights including on freedom of speech, expression, to education and to fair trial’, she says. 

If the UK were to leave the ECHR, lawyers would still have other tools to rely on, such as habeas corpus, the Magna Carta, the UN Convention on the Rights of the Child and other international conventions and treaties, to seek to protect and enforce their clients’ rights. ‘However’, explains Haslam, ‘the toolkit […] would be much depleted.’

What’s more, lawyers and their clients wouldn’t be able to plead the ECHR’s articles across all practice areas – from family law to town planning. This would limit their ability to challenge the government, says Rubin Italia, a solicitor at Stokoe Partnership Solicitors in the UK. ‘A significant part of the ECHR has been used in public law challenges against the government with a great deal of success’, he explains.

Italia highlights that more countries are now engaging with the ECHR and following it correctly. In no other jurisdictions are ministers suggesting their country might leave. Yet, believes Italia, it’s highly unlikely that the UK will actually depart. ‘There would be a significant backlash from businesses and corporations’, he says.

Randazzo adds that a UK withdrawal could threaten the EU–UK Trade and Cooperation Agreement (TCA), which governs the relationship between the two jurisdictions post-Brexit. ‘TCA contains an obligation imposed on both parties to continue their commitment to human rights. A “serious and substantial” failure to fulfil this obligation might lead to the suspension or termination of the Agreement by the other party’, he explains. 

Further, it’s a requirement of membership of the Council of Europe that member states are parties to the ECHR. A UK departing the ECHR would have to leave the Council, joining Belarus and Russia as the only other European states who aren’t members. ‘Neither is a democracy nor uphold the rule of law’, says Guthrie. ‘They would be the UK‘s bedfellows were it to leave the Council of Europe. The UK would lose all moral authority to promote and protect human rights globally.’ 

Image credit: European Court of Human Rights, Strasbourg, by dbrnjhrj - stock.adobe.com