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The UK vs the ECtHR: Anatomy of A Politically Engineered Collision Course

Written by
Alice Donald and Philip Leach, Verfassungsblog
Date of Publication:
09 May 2023

In recent months, the UK government has tabled two Bills before Parliament which would have the consequence – and almost certainly have the intention – of setting the UK on a collision course with the Council of Europe, and especially the European Court of Human Rights (ECtHR). Both the Bill of Rights Bill and the Illegal Migration Bill, introduced on 22 June 2022 and 7 March 2023 respectively, contain provisions that openly flout the UK's obligations under the European Convention on Human Rights (ECHR). While the former is currently in parliamentary limbo, the Illegal Migration Bill will probably become law, following extensive amendment by the House of Lords, which will debate it on 10 May.

This post details how the Bills serve to undermine the UK's obligations under the ECHR and explains their significance within the larger debate surrounding the UK's possible withdrawal from the Convention. It places this debate in the context of the rarely-convened Council of Europe summit of heads of state and government in Reykjavik in May 2023, whose ambitious agenda is to protect the 'common heritage' of respect for human rights, democracy and the rule of law in the face of Russia's aggression in Ukraine and other existential threats.

The Bill of Rights Bill

The Bill of Rights Bill would repeal and replace the Human Rights Act (HRA) 1998, which gives effect in UK law to most of the rights and freedoms in the Convention. It is the product of a near decade long fixation by the – now former – Justice Secretary, Dominic Raab, with abolishing the HRA and loosening the UK's ties with Strasbourg, dating back to his 2011 polemic on the prisoner voting issue.

Several of the Bill's provisions would create significant divergence between the UK and Strasbourg. The Bill would remove the current requirement under section 2 of the HRA for the UK courts to take relevant case law of the ECtHR into account and would encourage a more originalist reading of the Convention. The interpretive duty found in section 3 of the HRA would also be removed. This requires courts to interpret Acts of Parliament so that the rights, duties and powers they establish are exercised in ways that are compatible with Convention rights. Further, it would prevent UK judges from interpreting Convention rights in ways that create positive obligations on public authorities – and even discourage them from applying positive obligations that have already been identified in previous cases, creating inevitable contradiction with Strasbourg case law. The Bill also instructs UK courts not to have regard to any interim measure (or urgent injunction) issued by the ECtHR, which would directly contravene the UK's obligations under the Convention.

The parliamentary Joint Committee on Human Rights (JCHR) urged the Government not to proceed with the Bill, since:

'it weakens rights protections, it undermines the universality of rights, it shows disregard for our international legal obligations; it creates legal uncertainty and hinders effective enforcement; it will lead to an increased caseload in Strasbourg; and will damage our international reputation as guardians of human rights'.

It is likely that the JCHR's wish will be granted. Given the resignation of Dominic Raab as Justice Secretary on 21 April 2023, and having previously been denigrated by senior Conservative figures as 'worse than useless' and 'a complete mess,' the Bill will almost certainly be dropped (although it has not yet been withdrawn). While the wholesale and regressive reform of the UK's human rights laws the Bill entailed might thus be averted, some of its more insidious provisions remain on the legislative table. Both the Illegal Migration Bill and the recently introduced Victims and Prisoners Bill include provisions to disapply section 3 of the HRA, and the former would also allow ministers to ignore interim measures.

The Illegal Migration Bill

The Illegal Migration Bill's passage through Parliament looks more likely – if politically turbulent. It was introduced to achieve one of Rishi Sunak's five key priorities – to deter people from crossing the English Channel in 'small boats'. It seeks to do so by, with narrow exceptions, preventing those that do so from claiming asylum in the UK; detaining them (including children and pregnant women) for at least 28 days and potentially indefinitely; removing them from the country with almost no right of appeal; and permanently barring them and their children from ever re-entering the UK or being given leave to remain or citizenship. The Bill will also disqualify potential victims of slavery or human trafficking from protection from removal, modern slavery support, and any requirement to be granted leave, with exceptions only for people cooperating with an investigation or criminal proceedings.

The Equality and Human Rights Commission (Britain's national human rights institution) is concerned 'that the Bill risks placing the UK in breach of its international legal obligations to protect human rights, and exposing people to serious harm'. Indeed, the UN Refugee Agency has said that the Bill amounts to an 'asylum ban' and a 'clear breach of the Refugee Convention'. While ministers have acknowledged (here and here) that certain provisions of the Bill may not be compatible with the ECHR, they stated the government wishes to proceed with it nonetheless.

Of particular concern to Strasbourg is a provision that would give ministers the discretion to legally ignore binding interim measures issued by the ECtHR, like the measure which blocked the first deportation flight to Rwanda in June 2022. Rapporteurs of the Parliamentary Assembly of the Council of Europe (PACE) deplored the move, which 'would send a negative message, not only in the UK but also internationally'. EU diplomats also issued warnings to the UK government against the provision, which if it becomes law would be a clear breach of the UK's obligations under the Convention.

In unusually direct interventions in a domestic legislative process, the Council of Europe Commissioner for Human Rights, Dunja Mijatović, said the Illegal Migration Bill creates 'clear and direct tension with well-established and fundamental human rights standards', while the Council of Europe's main anti-trafficking body, GRETA, said the Bill would make it harder to identify victims, prosecute traffickers and combat human trafficking and that it breaches the core elements of the Council of Europe Trafficking Convention. For its part, the PACE migration committee describes the Bill as a 'wilful distortion of core UN and European conventions which the UK itself contributed to designing'.

Might the UK withdraw from the Convention?

On the domestic level, a key concern is that these Bills foreshadow a possible UK withdrawal from the ECHR. Conservative ministers have taken divided and inconsistent positions on this matter. While the Conservatives' 2019 manifesto pledged to 'update the Human Rights Act … to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government', it made no mention of withdrawal. However, a Downing Street source recently admitted that the Illegal Migration Bill was 'pushing the boundaries of what is legally possible, while staying within the ECHR', and added that, if the legislation was 'held up in Strasbourg', Rishi Sunak would be 'willing to reconsider whether being part of the ECHR is in the UK's long-term interests'.

For his part, Foreign Secretary James Cleverly said he was 'not convinced' that leaving the ECHR was necessary to have a robust immigration system, and he would not wish the UK to join the small club of states – Russia and Belarus – outside the Council of Europe. Development minister Andrew Mitchell recently suggested that the UK's departure from the ECHR would be 'catastrophic'. By contrast, Home Secretary Suella Braverman – supported by a vocal minority of backbench Conservative MPs – has made no secret that her 'position personally is that ultimately we [the UK] do need to leave the European Convention on Human Rights', while acknowledging that this is not government policy.

Talk of withdrawal now appears to form part of the Conservative Party's electoral strategy. The chair of the JCHR, Scottish National Party MP Joanna Cherry, has suggested that the plan behind the Illegal Migration Bill is to pass legislation 'in the certain knowledge' that courts will find it incompatible with the ECHR, and thereby lay the ground for the Conservatives to fight the next general election on a promise to take the UK out of the ECHR. Perhaps more likely is a Conservative manifesto that would keep the issue alive – e.g. with a promise to review the UK's membership – while refraining from a firm commitment to withdraw. This would allow the Conservatives to appeal to the part of their electoral base that still embraces the attitudes that animated the Brexit vote – hostility to Europe and to judicial oversight, especially by international courts – while avoiding the highly disruptive consequences of actual withdrawal.

In particular, the Good Friday (or Belfast) Agreement, which is in part an international treaty between the UK and Ireland, requires the ECHR to be part of the law in Northern Ireland, and the Northern Ireland Protocol affirms the UK's commitment to maintaining membership of the ECHR. If the UK withdrew from the ECHR without provision for Northern Ireland, it would violate both international agreements. There would be severe consequences, too, for the UK-EU Trade and Cooperation Agreement (TCA). Part Three of the TCA concerning law enforcement and judicial cooperation in criminal matters includes a commitment by both sides to continue 'giving effect to the rights and freedoms in that Convention domestically' – and this is strengthened by a provision stating that if the UK withdraws from the ECHR, cooperation on law enforcement and security would cease, regardless of whether the rest of the treaty is still in force.

The perspective from Strasbourg – and Reykjavik

Strasbourg, for its part, has been rightly preoccupied with the 'terrible violence and seismic change' resulting from Russia's barbarous invasion of Ukraine, as well as the systemic, existential threats of the climate emergency and rampant authoritarianism in states such as Hungary, Poland, Turkey and Azerbaijan.

Against this backdrop, the UK's attack on the ECtHR appears particularly misguided and parochial. When a founding member state resiles from its obligations under the ECHR – or discusses even the possibility of withdrawal – there is a high risk of contagion to less rights-respecting states. How, for example, can the UK apply pressure on Poland not to flout interim measures arising from its attacks on judicial independence while arguing for the same discretion itself? As former UK Prime Minister Gordon Brown has recently argued: 'Even if we stay inside the ECHR, we are deliberately undermining it from within by reneging on our long-established obligations and giving comfort to the backsliding of Hungary, Poland and Turkey, while also destroying any credibility our country has long enjoyed in criticising the disregarding of human rights across the world.'

The UK's attacks on the ECtHR are especially confounding given that it has, in fact, a well-functioning relationship with it. This is evidenced by the ever dwindling number of judgments in the years since the Human Rights Act 1998 started to take effect – for example, just two adverse judgments against the UK in 2022 – and its relatively strong record on implementation. In the post-Brexit world, the Council of Europe is the preeminent means for the UK to exercise 'soft power' influence and moral leadership across the continent – a position it should use to its advantage, not deliberately try to sabotage.

Leaders of the 46 member states will meet at a Council of Europe summit in Reykjavik on 16-17 May to provide 'a new strategic vision, a fresh political impetus and new responses in the face of the present extraordinary challenges'. Faced with such trials, there is an even greater need for unanimity and solidarity between human rights-respecting states – not least to strengthen Council of Europe initiatives that President Zelensky says offer hope of achieving accountability for Russia's aggression. Siofra O'Leary, the Irish President of the ECtHR, recently called for a renewed commitment from states to the Convention system and to the binding nature of ECtHR judgments and decisions, as well as heightened material and political support. For the sake of human rights protection across the continent, the UK should listen – and cease its corrosive and irresponsible attacks on the Court.