The suggestion that the UK should leave the European Court of Human Rights (ECtHR) comes from a number of different sources. First, it is a misplaced view that this is still something to do with Brexit. The ECtHR is not, of course, part of the EU. Second, it comes from a mistaken view that since Canada, Australia and New Zealand are not members, we whould not be either. Thirdly, it also comes from the view that the ECtHR has made judgements against the UK which affect our ability to run our own migration policy. None of these hold any validity.
In April 2012, when the UK last held the presidency of the Council of Europe, the UK Government initiated a major reform of the European Court of Human Rights, called the Brighton Declaration. In the words of the then UK Attorney General “This Declaration establishes that the responsibility for guaranteeing human rights rests with the government, parliament and courts of a country. It sets out clearly that the Court should not routinely overturn the decisions made by national authorities - and it should respect different solutions and different approaches between states as being legitimate.”
The Declaration does the following:
- amends the Convention to include the principles of subsidiarity and the margin of appreciation
- amends the Convention to tighten the admissibility criteria - so that trivial cases can be thrown out and the focus of the Court can be serious abuses
- reduces the time limit for claims from six months to four
- improves the selection process for judges
- sets out a roadmap for further reform.
The Court and the Convention (ECHR) which lies behind it are inherently Conservative achievements stemming from the vision of Churchill and the pen of then Conservative politician, Sir David Maxwell Fyfe. We were the first country to ratify the Convention in 1951 and Lord McNair became the first president of the Court of Human rights in 1959. It was also a Conservative who advocated that the court agree to individual applications. The current war between Russia and Ukraine and the rise again throughout Europe of the far right means that the reasons for the Convention are still as relevant today as they were in the 1950s.
Since the time of the Brighton Declaration until April 2022, the number of cases successfully brought involving the UK amounts to an average of just over 4 per year, many of which are still minor cases. The figures are reproduced below:
- 2012 (post Decl) - 6
- 2013 - 8
- 2014 - 4
- 2015 - 4
- 2016 - 7
- 2017 - 2
- 2018 - 1
- 2019 - 5
- 2020 - 2
- 2021 - 4
- 2022 - 1
The Court cannot begin a case until all legal remedies have been heard in the country of origin. In the years outlined above the Court has regularly dismissed deportation cases brought under migration rules. This includes a case brought for deportation to Nigeria, another for deportation to Afghanistan (pre-the Taliban), and another for deportation to Nigeria on drug related issues. The cases brought successfully include harassment, misconduct, surveillance, a criminal record, the prosecution of minors, detention, the power of officials, secret surveillance, wearing religious items, and prisoner voting. The latter was settled by agreement between the UK and the Court.
The Court, like the Council of Europe, is not part of the EU and never has been. It has a much broader base of some 46 member countries which share responsibility and for each of which a judge is elected to the Court. The view of lawyers, which is correct, is that if we leave the Convention, we have to leave the Council of Europe which will deprive us of the last remaining opportunity to engage with parliamentarians across the wider Europe and to participate in the work of the Council. Examples of this recently include the ability to negotiate with the Turkish delegation for Turkey to remove its objections at the time to Finland and Sweden being part of NATO, the negotiation of a paper recommending a new convention to tackle environmental protection in areas of armed conflict, the admission of Kosovo to the Council, the content of a Summit of heads of Government of the Council of Europe and contact tracing.
The UK could, of course, seek to put together an equivalent Convention just for the UK. But this would affect our international standing in a negative way and is very likely to produce a list of rights to which we are entitled which would be seen as inferior and over which the arguments would continue to run in the UK courts.
The second argument suggests that since Canada, Australia and New Zealand are not members, we should not be either. This is a fundamentally flawed argument. Canada, Australia and New Zealand are not members of the Convention. We are; and leaving would send completely the wrong signals. It would place us in the same space as Russia and Belarus and also Greece under the Colonels. If we were not already signatories to the Convention we would be having a completely different conversation now. But we are, and, the relevant comparison is with Russia, Belarus and Greece of the past and not with countries that have never been part of the Convention. Is that where we really want to be? It also ignores the much-quoted recognition in Australian law circles that the Convention is something to be aimed for not rejected.
In relation to the third argument, the claims on this are well rehearsed. It stems from the suggestion that the Court has made judgements which oblige us to change our policy about migration. This is not true. There is a story doing the rounds in the UK on television that what happened in the case of Rwanda and the UK Government was that a left-wing barrister called a single judge to make an application to defeat Government policy. This is not, of course, what happened. The interim judgement from the Court merely pushed the case back to the UK courts to consider, something the Court is obliged to do. In fact, the High Court in London quashed the decision in relation to one applicant. It found that the Home Office had failed to properly consider the circumstances of each of the claimants. The Strasbourg Court was right to prevent the removal until a domestic court had reviewed the case. It does not interfere with UK policy and follows a long line of cases at the Court in which it has not sought to take a line on UK deportations.
For these reasons there are several things the UK can do:
- first, it should look at whether there are any individual clauses of the Convention from which the UK should derogate. This is a perfectly possible thing to do. It does not mean us having to come out of the Convention or leave the Court;
- second, it should make its views about the Court on the basis of evidence. At the end of the day, we are already part of the Convention and the Court. It should make sure that we all have a full understanding of the implications which leaving the Convention would require.
Photo: Council of Europe; Court of Human Rights