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

A woman in an Indian surrogacy hostel. Photo: Getty
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The Handmaid's Tale has already come true - just not for white western women

Why, if the fate of the fictional Offred is so horrifying, is the fate of real-life women in surrogacy hostels causing so little outrage?

When anti-choice Republican Justin Humphrey referred to pregnant women as “hosts”, I found myself wondering, not for the first time, whether everything had got “a bit Handmaid’s Tale.”

I’m not alone in having had this thought. Since Donald Trump won the US election, sales of Margaret Atwood’s dystopian novel have spiked and we’ve seen a plethora of articles telling us how “eerily relevant [it] is to our current political landscape.” In an interview during Cuba’s international book fair, Atwood herself said she believes the recent “bubbling up” of regressive attitudes towards women is linked to The Handmaid’s Tale’s current success: “It’s back to 17th-century puritan values of New England at that time in which women were pretty low on the hierarchy … you can think you are being a liberal democracy but then — bang — you’re Hitler’s Germany.”

Scary stuff. Still, at least most present-day readers can reassure themselves that they’ve not arrived in the Republic of Gilead just yet.

For those who have not yet read it, The Handmaid’s Tale tells the story of Offred, who lives under a theocratic dictatorship in what used to be the United States of America. White, middle-class and college-educated, Offred once enjoyed a significant degree of privilege, but now belongs to a class of women whose sole purpose is to gestate offspring for high-status couples. Much of the shock value of the story comes from the contrast between Offred’s former life – in which she had a name of her own - and her present-day existence. If this can happen to someone like Offred, it is suggested, surely it can happen to any of us.

Or so that is what a white, middle-class reader – a reader like me – might tell herself. Recently I’ve started to wonder whether that’s strictly true. It can be reassuring to stick to one narrative, one type of baddie – the religious puritan, the pussy-grabbing president, the woman-hating Right. But what if it’s more complicated than that? There’s something about the current wallowing in Atwood’s vision that strikes me as, if not self-indulgent, then at the very least naive.

In 1985, the same year The Handmaid’s Tale was published, Gina Correa published The Mother Machine. This was not a work of dystopian fiction, but a feminist analysis of the impact of reproductive technologies on women’s liberties. Even so, there are times when it sounds positively Handmaid’s Tale-esque:

“Once embryo transfer technology is developed, the surrogate industry could look for breeders – not only in poverty-stricken parts of the United States, but in the Third World as well. There, perhaps, one tenth of the current fee could be paid to women”

Perhaps, at the time her book was written, Correa’s imaginings sounded every bit as dark and outlandish as Atwood’s. And yet she has been proved right. Today there are parts of the world in which renting the womb of a poor woman is indeed ten times cheaper than in the US. The choice of wealthy white couples to implant embryos in the bodies of brown women is seen, not as colonialist exploitation, but as a neutral consumer choice. I can’t help wondering why, if the fate of the fictional Offred is so horrifying to western feminists today, the fate of real-life women in surrogacy hostels is causing so little outrage.

I suppose the main argument of these feminists would be that real-life women choose to be surrogates, whereas Offred does not. But is the distinction so clear? If Offred refuses to work as a handmaid, she may be sent to the Colonies, where life expectancy is short. Yet even this is a choice of sorts. As she herself notes, “nothing is going on here that I haven't signed up for. There wasn't a lot of choice but there was some, and this is what I chose.” In the real world, grinding poverty drives women of colour to gestate the babies of the wealthy. As one Indian surrogate tells interviewer Seemi Pasha, “Why would I be a surrogate for someone else if I don't need the money? Why would I make myself go through this pain?"

None of the feminists who expressed shock at Justin Humphrey referring to pregnant women as “hosts” have, as far as I am aware, expressed the same horror at surrogacy agencies using the exact same term. As Dorothy Roberts wrote in Killing The Black Body, the notion of reproductive liberty remains “primarily concerned with the interests of white, middle-class women” and  “focused on the right to abortion.” The right not just to decide if and when to have children, but to have children of one’s own – something women of colour have frequently been denied – can be of little interest of those who have never really feared losing it (hence the cloth-eared response of many white women to Beyoncè’s Grammy performance).

As Roberts notes, “reproductive liberty must encompass more than the protection of an individual woman’s choice to end her pregnancy”:

“It must encompass the full range of procreative activities, including the ability to bear a child, and it must acknowledge that we make reproductive decisions within a social context, including inequalities of wealth and power. Reproductive freedom is a matter of social justice, not individual choice.”

It’s easy to mock the pretensions to pro-life piety of a pussy-grabbing president. But what about the white liberal left’s insistence that criticising the global trade in sexual and gestational services is “telling a women what she can and cannot do with her body” and as such is illiberal and wrong? “Individual choice” can be every bit as much of a false, woman-hating god as the one worshipped by the likes of Humphrey and Trump.

One of the most distressing scenes in The Handmaid’s Tale takes place when Janine/Ofwarren has just given birth and has her child taken from her:

“We stand between Janine and the bed, so she won’t have to see this. Someone gives her a drink of grape juice. I hope there’s wine in it, she’s still having the pains, for the afterbirth, she’s crying helplessly, burnt-out miserable tears.”

Right now there are women suffering in just this way. Only they’re probably not white, nor middle-class, nor sitting in a twee white bedroom in Middle America. Oh, and they’re not fictional, either.

The dystopian predictions of 1985 have already come true. It’s just that women like me didn’t notice until we started to be called “hosts”, too.

Glosswitch is a feminist mother of three who works in publishing.