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Would it be right for the UK to leave the ECHR?

Image © Mirror

About The Author

Emily Clements (Former Team Member)

Emily is a Durham University Law graduate due to start as a paralegal in the London Banking & Finance Department of a Silver Circle firm in October 2014, and currently has her targets set on qualifying as a solicitor.

For nearly a year now the Conservative party has been discussing their promised manifesto on its policy on the European Convention on Human Rights (ECHR). With a backdrop of an increasingly anti-ECHR attitude pervading the UK, the Conservatives appear eager to withdraw from the ECHR and the jurisdiction of the European Court of Human Rights (the Strasbourg Court). (Note the structure of the system: the Strasbourg Court rules on alleged violations of the ECHR when proceedings are brought before it and is in turn overseen by the Council of Europe). The government is promising some sort of alternative statutory mechanism to deal with the UKs complex relationship with the Council of Europe and human rights issues. However, it is no minor decision for the UK to turn its back on the ECHR: a Convention to which the UK was a crucial founding signatory. This article will explore some of the views of the ECHRs critics, in addition to substantial counter-arguments.

Support for leaving the ECHR

The key political figures driving the movement against the ECHR are Prime Minister, David Cameron, Justice Secretary, Chris Grayling, and Home Secretary, Theresa May. The core of their arguments for withdrawal is that Strasbourg is becoming over-intrusive in areas that should be properly dealt with by our domestic courts and Parliament. Chris Grayling sums up the criticsviews: people want to see the Supreme Court of the United Kingdom being in the United Kingdom and not in Strasbourg. Grayling is convinced that the ECHR was ‘never designed to do the kind of things they are doing today'; there is a real concern that Strasbourgs jurisdiction has stretched far beyond its founding principles. This is mainly because of the understanding that the ECHR is a living instrument, 'developing legally binding precedents from its interpretation of the basic article of the Convention'. It is argued that giving this power to foreign judges is now infringing on British sovereignty. 

One example used to back the anti-ECHR argument that control needs to be retained by the UK judiciaryhas been the unpopular Strasbourg decision that the UK must introduce a system of voting for prisoners (see Thomas Horton’s article for an analysis of the UK Supreme Courts decision discussing the validity of the UK ban on prisoner voting). A blanket ban on prisonersvoting was considered unlawful by the Strasbourg Court, yet the UK did not comply with their judgment. Other cases, including those involving terrorist deportations, have been labelled as “perverse decisions”; this has fuelled a growing desire for greater power to be restored to domestic courts.

Issues with leaving the ECHR

A focus of those against leaving the ECHR, such as Kenneth Clarke QC, MP, who considers the debate 'absurd', has been on the inescapably negative consequences that would arise were the UK to abandon the ECHR. Dominic Grieve believes that turning our back on the ECHR would render us a 'pariah state by European Standards'. It would have great reputational consequences to the standing of the UK worldwide’ in relation to its adherence to human rights, perhaps sending out a message that human rights are not that important after all, which surely cannot be intended. Moreover, it would undermine the effect of the ECHR across Europe since those signatories that are already slow to enforce Strasbourg rulings may view defiance, or even departure from the ECHR, as acceptable as a result of the UKs attitude. The few perverse” decisions that receive great media attention and sensationalism can surely not outweigh the need to send the right messages across Europe, particularly to those ex-communist States. It should be remembered that the ECHR was originally drafted in an attempt to ensure the horrors of the Second World War would never again be seen in history.

Another issue with leaving the ECHR, which has been widely articulated, lies in its fundamentally British history. Whilst its critics attempt to feed on the idea that this is foreign law run by foreign judges, its history does not present the same picture. The UK was a founding signatory to the ECHR in 1949, and the Magna Carta 1215 and the Bill of Rights 1689 heavily influenced the ECHRs formulation. In fact, Sir David Maxwell-Fyfe, the Conservative politician and lawyer who chaired the Committee of Ministers in charge of drafting the ECHR, was one of the most notable contributors to the ECHRs creation. It was intended to protect the values we fought for in the Second World War. The central involvement of a Conservative politician in its drafting further undermines any Conservative arguments that it is an essentially Labour Bill of Rights which they contend.

Finally, whilst the media and politicians are highly competent at creating a public belief that the ECHR allows Strasbourg some sort of objectionable degree of power over us as a signatory state, the statistics do not reflect this. In reality, the Strasbourg Courts impact on the UK is very minimal; there are only around ten critical judgments against the UK annually out of well over 1,000 cases that are lodged. This gives a figure of only 0.01% decisions against the UK. Furthermore, legally speaking, UK judges are not even categorically obliged to follow Strasbourg jurisprudence, Section 2 Human Rights Act 1998 requires judges to merely take it into account” Strasbourg decision when making domestic decisions. The "mirror" principle established in R (Ullah) v Special Adjudicator 2004 says: '[t]he duty of national courts is to keep pace with Strasbourg jurisprudence as it evolves over time: no more, but certainly no less'. The exact extent to which a UK court must follow Strasbourg is a subject of some controversy (see Lady Hale’s recent exploration of this). There also remains a respected "margin of appreciation", which affords signatory states a degree of leeway, taking into account national cultural differences. For example, the variety of euthanasia legislation within Europe is considered acceptable by Strasbourg since it is a controversial subject that is strongly influenced by differences in culture and religion.  Besides, Strasbourgs power is not to overrule our courts or declare what our law is, it is only to rule whether or not signatory states are in line with their Convention obligations. It is then up to Parliament whether to react to a declaration of incompatibility. It is no more of an infringement on our jurisdiction than any other international Treaty to which we are party, such as the World Trade Organisation, and as demonstrated above, it is perhaps the most British of all the international institutions we are involved in. Impressions of an overbearingly controlling, and overzealous international Court going against the will of our nation on a regular basis is simply not true.

Links with the UK debate on EU membership

Support for leaving the ECHR is intimately linked with the general feeling in the UK against membership of the European Union (despite the Council of Europe being a separate entity, with differing membership), the height of which was seen in May 2014 when the UK Independence Party (UKIP) was voted into the European Parliament with their intensely anti-EU manifesto. Notably, Dominic Grieve (former Attorney General for England and Wales) spoke out against some of UKIP’s policies, suggesting that they have stirred up unreasonable fears about the impact of immigration on the UK economy.

Although this may be a somewhat covert sub-aim of the Conservatives, it would become difficult for the UK to remain in EU if we no longer adhered to the Convention. Every European state (except Belarus) is a member of the Council of Europe; resigning from this body would undermine the international rule of law. Membership of the Council of Europe is a requirement for any prospective State joining the EU; it would be constitutionally difficult to see how the UK could remain within the EU should they withdraw from the ECHR. For further exploration of this point and a better understanding of how even if we were to withdraw from the ECHR protection remains somewhat unavoidable, see Thomas Horton’s article explaining the relationship between the EU, the ECHR, and the UK. In summary, this is not just a question of whether we as a nation want to follow the ECHR anymore, it is a question which goes to the core of the controversial and separate issue of whether the UK should be remain as a Member State of the EU.

Worryingly for those against abandoning the ECHR and the EU, there appears to be a link between the recent government reshuffle and those who do not support those who have been coined the Eurosceptics (who specifically oppose EU membership).Kenneth Clarke, former Cabinet Minister, Damian Green, former Minister of State for Police and Criminal Justice, and Dominic Grieve, former Attorney General, all supported our relationship with the EU and the ECHR; all these ministers were recently dismissed. It has been further suggested that this reshuffle which clears the path for those Conservatives against the EU and ECHR, combined with Graylings aims to make judicial review of government actions more difficult, (see Ryan Turner’s article which explains how Graylings proposals would specifically quash the ability of Non-Governmental Organisations to challenge government decisions) demonstrates a clear overall objective of increasing governmental power at the expense of individuals and minorities. This is evidently objectionable. 

Conclusion

I find much sympathy with the views of Kenneth Clarke who has articulated the important role of the ECHR:

It’s the way which we uphold the kind values we strive for, which are the rule of law, individual liberty, justice for all and the Convention is the bedrock of that.

The core rights in discussion here are: the right to life, not to be tortured, against slavery, to liberty, to a fair trial, to family life, to religious freedom, freedom of expression, freedom of association and not to be discriminated against. How could any civilised person object to the enforcement of such rights? The late Lord Bingham once asked: ‘which of these rights would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any of them un-British?'.

The future is uncertain. It remains to be seen how far Conservative policy will go. Alternatives to withdrawal could include scrapping the Human Rights Act without leaving the ECHR altogether, or even more moderately, merely focusing on expanding the margin of appreciation afforded to Member States. In reality this debate will remain merely a matter of speculation and we are unlikely to see any real change until the next election in 2015. Besides, the Conservatives would need to win that election in order to carry out any of their plans, which, considering current opinion polls, is by no means a given.

Further Reading

UK Human Rights Blog, What would happen if the UK withdrew from the European Court of Human Rights?

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Tagged: Constitution, European Union, Human Rights, International Law

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