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

Despite the Conservatives' hopes, withdrawal from the Strasbourg court is unlikely to make it easier to send foreign criminals back to their home states.

Today’s Mail on Sunday reports that the Home Secretary is to announce "soon" that the Conservative Party’s election manifesto for 2015 will include a pledge to withdraw from the European Court of Human Rights (ECHR) if the party obtains an overall majority.

I thought it would be useful to answer a few basic questions about what this would might mean for the UK. Bizarrely, the article appears alongside the Prime Minister’s opinion piece in the Sunday Telegraph promising that his party would not "veer right" and also "stick to the course we are on". Talk about mixed messages. Anyway, let’s concentrate on Strasbourg. For a basic introduction to the court and what it does, see my recent post: No, The Sun, the Human Rights Act is not the EU and David Hart QC’s A bluffer’s guide to human rights courts.

Is this new?

The short answer is yes. If the Conservative Party does announce a policy to withdraw from the Strasbourg court, that will be something new. But a qualification: I am a little hesitant about responding to the phoney war-type Sunday Mail and Telegraph articles. It has become something of a Saturday night ritual (if you like that kind of thing) for Twitter to explode in outrage over some new human rights "pledge" from a Conservative minister which won’t even begin to effect us until 2015, and only then if the Conservatives win an overall majority.

But although the Conservative Party has long argued for the repeal of the Human Rights Act (including Chris Grayling yesterday), and intimated that it may investigate the ‘nuclear’ option of withdrawing from the Strasbourg court, promising to withdraw from the court represents a new direction.

Will leaving Strasbourg stop the courts preventing the removal of foreign criminals?

No. There are three main reasons for this.

First, the European Court of Human Rights only decides a fraction of the UK’s human rights cases per year – around ten. Only a handful of those are about foreign criminals or immigration – you can see the full list from page 16 of this Ministry of Justice document.

Indeed, the vast majority of human cases, including those involving immigration and extradition, are decided by our own courts. For proof, see the Mail on Sunday’s own ‘SCARY BLACK BOX OF SHAME’, that is the cuttings of previous headlines about courts stopping removals. None of the cases mentioned is a European Court of Human Rights case. They all relate to decisions by UK courts. The Human Rights Act 1998 gave local UK courts the power to enforce most of the European Convention on Human Rights. The idea was to ‘bring rights home’ and stop our rights law being forged exclusively in Strasbourg. That is what has happened, meaning that UK judges are largely deciding UK human rights issues.

If we withdrew from the Strasbourg court tomorrow, domestic courts would still carry on applying human rights law and taking account of (not following) decision of the European Court of Human Rights. Indeed, they are obliged to do by section 2 of the Human Rights Act. Of course, a Conservative may repeal the Human Rights Act too, but all indications are that this would be replaced by some kind of Bill of Rights which is likely to be similar to the ECHR but with a British twist. Indeed, the Mail reports that

The provisions of the European convention are already enshrined in British law in the Human Rights Act – but under Mrs May’s plan, the final right of appeal would be to the British Supreme Court, not Strasbourg.

Second, the European Convention on Human Rights is only one of a number of international conventions and EU (yes, those guys) rules which stop the UK from doing things like sending people back their home countries where they would face a real risk of torture or doing things which disproportionately affect children (even the children of foreign criminals). Withdrawing from Strasbourg would do little or nothing to untangle that web. Nor would we want to untangle it. I would be surprised if even staunch Daily Mail readers would be willing to withdraw from international conventions which outlaw torture or protect children, if given a well-informed choice.

Just as importantly, the EU is itself about to become a party to the European Convention, which means individuals may be able to bypass Strasbourg altogether and bring cases to Luxembourg (where the EU’s court, the ECJ is housed) instead – see this post for more.

The Mail on Sunday has again provided excellent evidence of this: the story below the main one, "New outrage as Taliban suspect told he can stay", which begins "In a new human rights case to cause anger", is not about a human rights case at all, but about the EU Refugee Qualification Directive – you can read the case report here. If we were to expunge all traces of the European Convention on Human Rights from our law, that directive would still apply.

Third, if we did leave the Strasbourg court and the Supreme Court had the final say on human rights, don’t expect those judges to be charitable to the government when it comes to interpreting basic rights, particularly if the right of individual petition to the Strasbourg court – a safety net in the current system – has been removed. Home Secretaries have felt unduly constrained by international agreements long before the Human Rights Act – see this cracking 25-year-old judgment - but that doesn’t mean we should let Home Secretaries dictate which agreement we remain party to.

What is important to understand is that domestic courts are not bound to follow the European Court of Human Rights now, but judges take the view that if there is a principle arising from a consistent line of cases in the Strasbourg court and there is no particular conflict with UK law, they will follow it.

Our own common law has become bound up with and highly influenced by the case law of the European Court (following the case of Ullah, UK courts to do "no more" than Strasbourg "but certainly no less"). Judges don’t generally consider the Strasbourg court to be as barmy as some politicians would have us believe, and there is absolutely no indication at all that withdrawal from Strasbourg would alter this situation a great deal if at all.

What would happen to the UK internationally if it withdrew?

This is a bit of an unknown. It is a testament to how much of an outlier the UK would become if it withdrew from the court’s jurisdiction that we don’t really know what the legal and political effects would be. Legally, the UK would probably have to withdraw from the European Convention on Human Rights – a treaty – completely since the court is so integral to the convention system, as well as the Council of Europe, which it was instrumental in creating. States’ adherence to the ECHR has also become a central tenet of membership to other organisations such as the UN and the EU – see this article for more.

The UK would probably not become a "pariah" as some claim, but that is a bit of a false argument. The test for whether the UK makes big international moves should not be whether we would become a pariah, but whether, on balance, it would be good for the UK.

Politically, the UK would be sending a clear signal to states which lose far more cases in Strasbourg, such as Russia and Turkey, that it no longer had confidence in the ECHR system. Whether you think that is a bad thing probably depends on your underlying theory of international relations and whether you think international institutions work in regulating the behaviour of states. In my view, you would have to be a very hard 'realist' indeed to think that a UK withdrawal – particularly for arguably local political reasons such as in this case – would be a net positive for international human rights. I wonder what the Conservative Party Human Rights Commission, which promotes international human rights, would say.

Don’t play politics

There are many other dimensions to this debate which I have not covered, such as the irony that the Conservative Party, whose lawyers were instrumental in drafting the ECHR in the first place and which has traditionally stood up for individual rights against the overweening state, could be the party which causes its eventual decline.

Any justification for leaving must be balanced against the very significant signal which the UK would be sending to other states, that it has lost confidence in the European Convention on Human Rights. Moreover, leaving Strasbourg would arguably leave individuals in the UK in a weaker position against the state if their rights are breached.

With this in mind, the key question is whether withdrawing from the European Court of Human Rights will solve the problems which the Conservative Party – and particularly the Mail and the Telegraph – have identified.

The answer is ‘no’. Withdrawal from Strasbourg is unlikely to make it easier to send foreign criminals back to their home states, particularly if they are facing torture or if their children are going to be unduly affected. Given that is the case, the stated justification for withdrawal falls away. What is left? That is ultimately for the electorate to decide, but an inchoate fear of European influence, an obsession with the expulsion of foreigners and the rise of UKIP, are certainly good candidates.

This post originally appeared on UK Human Rights Blog

Adam Wagner is a barrister at 1 Crown Office Row chambers and editor of UK Human Rights Blog

The European Court of Human Rights in Strasbourg. Photograph: Getty Images.

Adam Wagner is a barrister at 1 Crown Office Row chambers and editor of UK Human Rights Blog

Steve Garry
Show Hide image

The footie is back. Three weeks in and what have we learned so far?

Barcleys, boots and big names... the Prem is back.

Another season, another reason for making whoopee cushions and giving them to Spurs fans to cheer them up during the long winter afternoons ahead. What have we learned so far?

Big names are vital. Just ask the manager of the Man United shop. The arrival of Schneiderlin and Schweinsteiger has done wonders for the sale of repro tops and they’ve run out of letters. Benedict Cumberbatch, please join Carlisle United. They’re desperate for some extra income.

Beards are still in. The whole Prem is bristling with them, the skinniest, weediest player convinced he’s Andrea Pirlo. Even my young friend and neighbour Ed Miliband has grown a beard, according to his holiday snaps. Sign him.

Boots Not always had my best specs on, but here and abroad I detect a new form of bootee creeping in – slightly higher on the ankle, not heavy-plated as in the old days but very light, probably made from the bums of newborn babies.

Barclays Still driving me mad. Now it’s screaming from the perimeter boards that it’s “Championing the true Spirit of the Game”. What the hell does that mean? Thank God this is its last season as proud sponsor of the Prem.

Pitches Some groundsmen have clearly been on the weeds. How else can you explain the Stoke pitch suddenly having concentric circles, while Southampton and Portsmouth have acquired tartan stripes? Go easy on the mowers, chaps. Footballers find it hard enough to pass in straight lines.

Strips Have you seen the Everton third kit top? Like a cheap market-stall T-shirt, but the colour, my dears, the colour is gorgeous – it’s Thames green. Yes, the very same we painted our front door back in the Seventies. The whole street copied, then le toot middle classes everywhere.

Scott Spedding Which international team do you think he plays for? I switched on the telly to find it was rugby, heard his name and thought, goodo, must be Scotland, come on, Scotland. Turned out to be the England-France game. Hmm, must be a member of that famous Cumbrian family, the Speddings from Mirehouse, where Tennyson imagined King Arthur’s Excalibur coming out the lake. Blow me, Scott Spedding turns out to be a Frenchman. Though he only acquired French citizenship last year, having been born and bred in South Africa. What’s in a name, eh?

Footballers are just so last season. Wayne Rooney and Harry Kane can’t score. The really good ones won’t come here – all we get is the crocks, the elderly, the bench-warmers, yet still we look to them to be our saviour. Oh my God, let’s hope we sign Falcao, he’s a genius, will make all the difference, so prayed all the Man United fans. Hold on: Chelsea fans. I’ve forgotten now where he went. They seek him here, they seek him there, is he alive or on the stairs, who feckin’ cares?

John Stones of Everton – brilliant season so far, now he is a genius, the solution to all of Chelsea’s problems, the heir to John Terry, captain of England for decades. Once he gets out of short trousers and learns to tie his own laces . . .

Managers are the real interest. So refreshing to have three young British managers in the Prem – Alex Neil at Norwich (34), Eddie Howe at Bournemouth (37) and that old hand at Swansea, Garry Monk, (36). Young Master Howe looks like a ball boy. Or a tea boy.

Mourinho is, of course, the main attraction. He has given us the best start to any of his seasons on this planet. Can you ever take your eyes off him? That handsome hooded look, that sarcastic sneer, the imperious hand in the air – and in his hair – all those languages, he’s so clearly brilliant, and yet, like many clever people, often lacking in common sense. How could he come down so heavily on Eva Carneiro, his Chelsea doctor? Just because you’re losing? Yes, José has been the best fun so far – plus Chelsea’s poor start. God, please don’t let him fall out with Abramovich. José, we need you.

Hunter Davies is a journalist, broadcaster and profilic author perhaps best known for writing about the Beatles. He is an ardent Tottenham fan and writes a regular column on football for the New Statesman.

This article first appeared in the 27 August 2015 issue of the New Statesman, Isis and the new barbarism