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The Real Truth About the European Court of Human Rights? It Hardly Ever Overrules the UK

Per person, the ECHR dealt with fewer human rights challenges concerning the UK than anywhere else in 2022, Josiah Mortimer reports

Home Secretary Suella Braverman is reportedly working with Tory backbenchers to push through human rights-breaching amendments to her own Illegal Immigration Bill. Photo: Imageplotter/Alamy

The Real Truth About the European Court of Human Rights? It Hardly Ever Overrules the UK

Per person, the ECHR dealt with fewer human rights challenges concerning the UK than anywhere else in 2022, Josiah Mortimer reports

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The latest sabre rattling over the European Court of Human Rights should come as no surprise. Nearly every Conservative Prime Minister flirts with the idea, in an effort to pander to their party’s right and pamper the red-tops. 

But it has reached a new peak this week, with dozens of Tories pushing the Prime Minister to weaken the UK’s adherence to the landmark agreement which the UK helped draft in 1951.

This most recent push to extremify the Illegal Migration Bill follows the ECHR’s measured decision last year to pause the deportations to Rwanda until the deportees’ legal appeals had run their course. 

Specifically, the case of K.N. v. UK saw the ECHR ensure an Iraqi asylum-seeker’s imminent removal to Rwanda was deferred until after the “final domestic decision in his ongoing judicial review proceedings” was made. In other words, the European Court said “wait for the UK courts to decide”.

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The Government would like its voters to think the ECHR only exists to protect asylum seekers. In contrast, the European Convention – incorporated in our very-own Human Rights Act – has been relied upon by victims of injustice for decades now. From protecting the families of the Hillsborough disaster to Rochdale sexual abuse victims, it is a final backstop when public bodies and vested interests fail us. 

It ain’t perfect, but who could look at this sorry shower and want to scrap a final check-and-balance?

To illustrate that, let’s look at some actual – and pretty rare – cases of the ECHR overruling the UK. Financial Times Ltd and Others v. the UK (2009) saw five news organisations – including Murdoch’s Times Newspapers – complain about a court order requiring them to deliver up documents which could have led to the identification of a journalistic source. The demand was deemed to be a violation of Article 10 (freedom of expression) by the ECHR. 

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Observer and Guardian v. the UK (1991) concerned an injunction against newspapers, with intelligence officials seeking to block the publication of details of the book ‘Spycatcher’. It was overturned as a violation of Article 10 (freedom of expression).

Sunday Times v. the UK 1979 saw an injunction preventing the paper publishing on the thalidomide scandal and their compensation claims also overturned as a violation of freedom of expression. In fact, one of the biggest friends of free speech – ostensibly so cherished by the right – has been the ECHR. 

And privacy, too. Big Brother Watch and Others v. the UK (2021) concerned complaints by journalists and human-rights organisations regarding three different surveillance regimes from the government: the bulk interception of communications, the receipt of intercept material from foreign governments and intelligence agencies, and the obtaining of communications data from communication service providers. 

The “bulk intercept” regime was deemed a violation of Article 8 of the European Convention (right to respect for private and family life/communications).  

But in the context of right-wing hysteria, it’s important to look at just how often the European Court of Human Rights has actually intervened in the UK. 

The Court published its annual report and statistics for 2022 recently. It was completely ignored in the UK press. Among other things, the figures showed that:

Balanced judgement

Cases last year included the ECHR backing the UK government over deporting a criminal to Nigeria, with the court ruling that deportation would not violate the Convention “despite family ties and previous granting of Indefinite Leave to Remain in the UK”. 

The other of the two-out-of-four rulings backing the government was Sanchez-Sanchez v. the United Kingdom. The US had requested the extradition of alleged drug trafficker Mr Sanchez-Sanchez, a Mexican national, to the US to face trial. Sanchez-Sanchez alleged that there was a possibility that he might, if convicted, be sentenced to life imprisonment without parole. Again, the court ruled “tough luck” and it would not violate Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights to pack him off to the States.

Coventry v the UK was about whether a defendant was hit with costs that were too high in litigation when he lost a case (it ruled that he was). More interestingly, Benkharbouche & Janah v. the UK saw one domestic servant and another driver for diplomatic staff win the National Minimum Wage. A servant for an embassy had been “summarily dismissed” for explaining that she would be unable to prepare a meal for thirty people at short notice. Both claimants won, a victory for all workers and a move that has bolstered employment rights protections for domestic workers.  

And yet the Tory right appears to want nothing more than a fight with the Council of Europe, which appears to be an ideological stand-in for all things ‘suspect and foreign’ now that Brexit has happened.

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National Shame

The Council of Europe’s Commissioner for Human Rights, Dunja Mijatović, made a rare intervention this week, writing to the House of Commons and the House of Lords about the Illegal Immigration Bill. She warned that the Bill “create[s] clear and direct tension with well-established and fundamental human rights standards”, by  preventing people who arrive irregularly in the UK from having their asylum claims assessed – stripping away one of the “essential building blocks” of the protection system. 

The exclusion of most potential victims of trafficking in human beings from modern slavery protections (a nightmarish sentence if I’ve ever heard one), the widespread powers of detention, and strict limits on judicial challenges to detention also risk a clash with the ECHR.

“Passing the Bill would add to the already significant regression in the protection of refugees, asylum seekers and migrants in the UK in the last few years”, the Commissioner stresses.

Extraordinarily, the Home Secretary is reported to be working with Tory hardliners behind the scenes, to get amendments to her government’s own bill that would weaken human rights protections. The Times quoted “senior government sources” describing Braverman as a “sock puppet” for Tory hardliners opposed to the ECHR on Monday. 

As Byline Times columnist and former diplomat Alexandra Hall Hall has written, a stand-off between the UK and ECHR over the Illegal Immigration Bill would “increase the risk of the UK exercising the nuclear option of withdrawing from the convention altogether. This would result in the UK automatically being expelled from the Council of Europe, for which adherence to the ECHR is a condition of membership, and would put Britain in the unedifying company of Russia and Belarus – the only two countries in Europe that are not members of the council.” 

It would, she notes, be “an astonishing position for the UK to find itself in – as the country which helped draft much of the convention in the aftermath of the Second World War, and the first country to sign it.” 

Dangerous Game

It’s unlikely that Rishi Sunak actually wants this. But Tory strategists seem to be calculating that a war with the ECHR could prove immensely helpful for the party’s currently-dire general election prospects.

But the ramifications of being booted out of the ECHR, or withdrawing voluntarily, for a short-lived, saccharine pre-election boost for the Tories, would be immense. The Good Friday Agreement is built upon the UK remaining a member.

So is the UK’s Brexit agreement, with security and policing cooperation with the EU automatically ending should the UK pull out. UK membership of the ECHR is also an important element of the inquiry into the 1998 Omagh bombing that was announced only last month: the Northern Ireland High Court found in 2021 that “plausible arguments” could be made that the State had failed to comply with its obligation under Article 2 of the European Convention on Human Rights to take reasonable steps to prevent the bombing.

The ECHR is there for all of us. Ministers of any hue might not always agree with it, but with a government so intent on driving a wrecking ball through our civil liberties it is no surprise there is some friction. The risk is that this friction has now become an industrial sander, wielded by some of the most unhinged elements of the Tory right.

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