In the aftermath of the second world war the leaders of western European democracies sought to establish structures to protect democracy and defend human rights. The drafting of the European Convention on Human Rights (ECHR) was completed in 1950 and made available for states to sign.
A prime mover in establishing the ECHR was the former UK prime minister, Winston Churchill. The European Court of Human Rights (ECtHR) was set up in 1959 as part of the structure, to adjudicate on human rights cases and interpret the convention. In 1998 parliament passed the Human Rights Act, which gives effect to the ECHR in UK law.
In recent years there have been calls from some of those on the right of the Conservative party for the UK to opt out of the convention. In their view this would stop the court at Strasbourg “meddling” in UK politics.
In the past, there have been, for example, altercations between the court and the Westminster government on the question of stripping prisoners of their right to vote in elections. More recently, the court incurred the wrath of Suella Braverman and her coterie when its interim injunction put a last-minute halt to a planeload of asylum seekers being sent to Rwanda.
The present government consists of the flotsam and jetsam of the 2019 ‘Get Brexit Done’ election. Its mindset is one of the primacy of UK sovereignty – that we had to get out of the EU to avoid being ruled by Brussels and its European Court of Justice. By the same token, goes the argument, we need to get out of the Council of Europe and its Strasbourg human rights court. The government’s prejudices are all of a piece.
A court in Europe … with vital protections for British people
In answer to the question of how the UK has benefitted from the ECHR, a most helpful briefing note by Sir Jonathan Jones makes the following point:
“It has profoundly influenced the protection of rights in the UK – in areas including the treatment of [the LGBTQIA+ community], corporal punishment in schools, the protection of journalistic sources and the treatment of internees in Northern Ireland.”
Jones goes on to say:
“Every time the government loses a case in the European Court of Human Rights in Strasbourg (or indeed in our domestic courts under the Human Rights Act) it is being told to do something it would rather not do, or vice versa.
“But whatever the home secretary, Suella Braverman, may say, it is not just criminals who benefit from the Convention. The ECHR has protected the rights of whole categories of people who, at the time, would not otherwise have enjoyed such protection.”
Given the nature of our present government, this protection strikes me as vital.
Dangers of leaving the ECHR
Peace was brought about in Northern Ireland via the Good Friday agreement. This agreement includes participation in the ECHR as one of the “safeguards to protect the rights and interests of all sides of the community”. We unpick the Good Friday agreement at our peril.
Similarly, the EHCR is, as Jones puts it, “baked into the UK-EU Trade and Co-operation Agreement”. If the UK chose to derogate from the convention, that would provide grounds for the EU to terminate the part of the TCA on law enforcement and judicial co-operation. The cost would, again, be significant. As Jones points out, “leaving the ECHR would imperil both stability in Northern Ireland and the UK’s relationship with the EU, at least in criminal justice matters”.
A divide within the Conservative Party?
The charge to leave the ECHR is led by people such as Braverman and Simon Clarke. Their enthusiasm is shared by many of the ‘red wall’ Conservative MPs, including Marco Longhi of Dudley, who has been quoted as complaining “ … the ECHR trumps everything”.
On the other side there are senior members such as Sir Bob Neill:
“If Conservatives do not believe in the rule of law, what do we believe in? Are we going to put ourselves in the same company as Russia and Belarus?”
Others, such as Andrew Mitchell and the former justice secretary, Robert Buckland, share Neill’s view.
It is highly unlikely that the government will seek, in the time remaining before a general election, to pass legislation to leave the Council of Europe and the ECHR. But should it try, it is certain to run up against fierce opposition in the Lords. Our upper house is packed with legal expertise (and decent values). One can imagine Kenneth (now Lord) Clarke speaking out strongly in favour of remaining in the ECHR. I wager it would be one hell of a fight, with the ‘leavers’ getting a thoroughly bloody nose.
As an alternative, leavers might well push for two things in the Conservative election manifesto: firstly, a proposal to leave the ECHR supported by, secondly, a referendum on the issue. Given their known capacity to lie effectively, they might expect to dupe the UK electorate a second time (re-run of Brexit referendum?).
For the above reasons we have to be on our guard.
