Why Leaving the ECHR would be Such a Backwards Step for Britain

Barrister Gareth Roberts explains how the European Convention on Human Rights affects the lives of British citizens

One striking aspect of the Government’s Illegal Immigration Bill is that it was accompanied by a declaration from the Home Secretary, saying that she could not make a definitive statement on its compatibility with the European Convention on Human Rights. Instead, she sent a letter to all Conservative MPs and peers stating that there was a “50% chance” that the legislation was incompatible but that, regardless, it was the Government’s intention to pass it anyway. 

This does not come as a surprise. 

For some time, the right-wing of the Conservative Party has demonstrated a desire to remove Britain from the European Convention on European Rights. Indeed, as long ago as 2014, then Justice Secretary Chris Grayling was threatening to withdraw the UK from the European Court of Human Rights, if it didn’t agree to make itself subordinate to the UK Parliament – a demand that did little other than demonstrate his fundamental ignorance of the court’s workings and procedures. 

In its 2019 Conservative Manifesto, the Government said it would “update the Human Rights Act”. Justice Secretary Dominic Raab’s Bill of Rights Bill was introduced in Parliament last June.

The politics behind this appears to be two-fold: first, the Conservative right-wing’s general antipathy to any foreign influence in UK public-policy making; second, a view that, somehow, the ECtHR may be complicit in preventing the Government from establishing a more robust legislative programme to tackle issues such as illegal immigration.

It appears that, just as they managed to do with the European Union, the Conservatives will try to demonise the ECtHR by representing it as a ‘woke and alien pariah’ to distract the electorate from the failures of the Government.

So, what exactly is the European Court of Human Rights (ECtHR)? 

The ECtHR was established following the Treaty of Rome in 1950 to uphold and adjudicate upon any arguments surrounding the European Convention on Human Rights, which was enshrined at the same time.

It is based in Strasbourg and is entirely independent of the EU. There are now 47 signatories, each of which sends a single judge to sit on the various courts. 

The British judge, currently Tim Eike KC, was nominated by the UK Government and elected to the post by the General Council of the ECHR. As such, the ECHR has a clear link to the UK – but each judge, just like all judges in our domestic courts, have an allegiance to the law and the Convention that supersedes their allegiance to their own country. 

The only European countries not signatories to the ECHR, and therefore not within the remit of the ECtHR, are Belarus and Russia. 

The ECtHR will consider cases where there is an allegation of a breach of the convention. The convention consists of 18 articles ranging from the right to life to the right not to be enslaved or tortured.

The draftsman who contributed most to its content was the Conservative Cabinet minister and lawyer Sir David Maxwell-Fyfe, with the full backing of Winston Churchill. It sought to re-establish basic human rights in Europe in the wake of the Second World War, while also creating a clear legal contrast to the Stalinist totalitarianism that was running rampant in the east. 

In the UK, until 1999, only the state could bring a case before the ECtHR. But, following the enactment of the Human Rights Act by Tony Blair’s Government, the right to bring a perceived infringement of our basic human rights before the ECHR was afforded to every individual. In addition, there is a legally imposed duty upon every UK Government to ensure that all public policy and law is enacted in accordance with the basic principles of the articles in the convention.  

If the ECtHR upholds a challenge, the signatory states are invited to, but not bound, to amend public policy or law to comply with the convention. 

In recent years, one of the key decisions followed the case of Ukraine versus Russia, whereby the Ukrainian Government, following the Russian invasion of Crimea in 2014, asked the ECtHR to intervene over a raft of breaches of the convention ranging from attempts to force the Russian Orthodox religion on the people of Crimea to the excessive use of force by the Russian police and secret service.

If Ukraine succeeds in the current Russian invasion of its soil, the ECtHR could again play a profound role in re-establishing the basic rule of law and human rights in Europe. If the UK leaves the ECHR, its role in this process – and indeed its position within the hierarchy of global politics – would be significantly diminished. 

But the ECtHR’s key decisions impact the people of the UK in many ways.

In 1979, the court upheld a challenge brought when The Sunday Times was being prevented from publishing information about the thalidomide scandal. In 2004, the court intervened to ensure that compensation paid to people suffering from the effects of state-led expansion and compulsory purchase was adequate.

In 2009, in the landmark ruling in the case of Opuz versus Turkey, the right of women not to be subjected to domestic violence was enshrined into law, helping to protect the rights of every woman in each of the 47 signatory states.

In 2013, Latvia was sanctioned after it raided the home of a journalist and confiscated her computers after she broadcast a story about a data leak from the Latvian State Revenue Department. In its judgment, the court reinforced the basic principle that a journalist’s ability to protect their sources is fundamental to the right of freedom of expression.

All of these cases, and many more, are hugely influential in the field of jurisprudence and public policy and affect the lives of every individual living in a signatory nation. If the UK takes itself out of this process, not only will each and every British citizen lose an important guarantor for their basic human rights, but the country itself will be increasingly isolated in a world facing many problems we can only solve together.

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