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

Nigel Farage and Paul Nuttall. Photo: Getty
Show Hide image

Nigel Farage and Douglas Carswell don’t need to stand again as MPs – they’ve already won

I just loathe these people. I want to see them humiliated. 

We’re a week in to the campaign, and it’s clear that the 2017 election is going to be hell on toast. The polls show the Tories beating Labour in Scotland (for the first time in a generation) and Wales (for the first time in a century). The bookies put the chances of a Labour majority at around 20/1, odds that are striking mainly because they contain just one zero.

The only element of suspense in this election is whether Theresa May will win a big enough majority to keep Labour out of power for a decade, or one big enough to keep it out for an entire generation. In sum: if you’re on the left, this election will be awful.

But there was one bright spot, a deep well of Schadenfreude that I thought might get us through: the campaign would provide plentiful opportunities to watch the people who got us into this mess be humiliatingly rejected by the electorate yet again.

After all, Ukip’s polling numbers have halved since last summer and the party has fallen back into fourth place, behind the pro-European Lib Dems. Nigel Farage has failed to become an MP seven times. It thus seemed inevitable both that Farage would stand, and that he would lose. Again.

If the vexingly popular Farage has never made it to parliament, the odds that his replacement as Ukip leader, Paul Nuttall (the Walter Mitty of Bootle), would manage it seemed minimal. Ukip may have won last year’s referendum; that did not mean its leaders wouldn’t still lose elections, preferably in the most embarrassing way possible.

The true highlight of the election, though, promised to be Clacton. The Essex seaside town is the only constituency ever to have returned a Ukip candidate at a general election, opting to let the Tory defector Douglas Carswell stay on in 2015. But Carswell’s libertarian belief that Brexit was definitely not about immigration always seemed an odd fit with Ukip, and he left the party in March. In the upcoming election, he seemed certain to face a challenge from the party’s immigration-obsessed donor Arron Banks.

The Clacton election, in other words, was expected to serve as a pleasing metaphor for Ukip’s descent back into irrelevance. The libertarians and nativists would rip chunks out of each other for a few weeks while the rest of us sniggered, before both inevitably lost the seat to a safe pair of Tory hands. This election will be awful, but Clacton was going to be brilliant.

But no: 2017 deprives us of even that pleasure. Carswell has neatly sidestepped the possibility of highlighting his complete lack of personal support by standing down, with the result that he can tell himself he is quitting undefeated.

Carswell has always stood apart from Ukip but on this matter, at least, the party has rushed to follow his lead. Arron Banks spent a few days claiming that he would be running in Clacton. Then he visited the town and promptly changed his mind. At a press conference on 24 April, Paul Nuttall was asked whether he planned to stand for a seat in Westminster. Rather than answering, he locked himself in a room, presumably in the hope that the journalists outside would go away. Really.

As for Farage, he seems finally to have shaken his addiction to losing elections and decided not to stand at all. “It would be a very easy win,” he wrote in the Daily Tele­graph, “and for me a personal vindication to get into the House of Commons after all these years of standing in elections.” He was like an American teenager assuring his mates that his definitely real Canadian girlfriend goes to another school.

Why does all of this bother me? I don’t want these people anywhere near Westminster, and if they insisted on standing for a seat there would be at least the chance that, in these febrile times, one of them might actually win. So why am I annoyed that they aren’t even bothering?

Partly I’m infuriated by the cowardice on show. They have wrecked my country, completely and irrevocably, and then they’ve just legged it. It’s like a version of Knock Down Ginger, except instead of ringing the doorbell they’ve set fire to the house.

Partly, too, my frustration comes from my suspicion that it doesn’t matter whether Ukip fields a single candidate in this election. Theresa May’s Tories have already assimilated the key tenets of Farageism. That Nigel Farage no longer feels the need to claw his way into parliament merely highlights that he no longer needs to.

Then there’s the fury generated by my lingering sense that these men have managed to accrue a great deal of power without the slightest hint of accountability. In the south London seat of Vauxhall, one of the most pro-Remain constituencies in one of the most pro-Remain cities in the UK, the Labour Leave campaigner Kate Hoey is expected to face a strong challenge from the Liberal Democrats. Even Labour members are talking about voting tactically to get their hated MP out.

It remains to be seen whether that campaign succeeds but there is at least an opportunity for angry, pro-European lefties to register their discontent with Hoey. By contrast, Farage and his henchmen have managed to rewrite British politics to a degree that no one has achieved in decades, yet there is no way for those who don’t approve to make clear that they don’t like it.

Mostly, though, my frustration is simpler than that. I just loathe these people. I want to see them humiliated. I want to see them stumble from gaffe to gaffe for six weeks before coming fourth – but now we will be deprived of that. Faced with losing, the biggest names in Ukip have decided that they no longer want to play. And so they get to win again. They always bloody win. 

Jonn Elledge edits the New Statesman's sister site CityMetric, and writes for the NS about subjects including politics, history and Daniel Hannan. You can find him on Twitter or Facebook.

This article first appeared in the 27 April 2017 issue of the New Statesman, Cool Britannia 20 Years On

0800 7318496