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

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Caroline Lucas and Jonathan Bartley: "The Greens can win over Ukip voters too"

The party co-leaders condemned Labour's "witch hunt" of Green-supporting members. 

“You only have to cast your eyes along those green benches to think this place doesn't really represent modern Britain,” said Caroline Lucas, the UK’s only Green MP, of the House of Commons. “There are lots of things you could do about it, and one is say: ‘Why not have job share MPs?’”

Politics is full of partnerships and rivalries, but not job shares. When Lucas and Jonathan Bartley were elected co-leaders of the Green party in September, they made history. 

“I don't think any week's been typical so far,” said Bartley, when I met the co-leaders in Westminster’s Portcullis House. During the debate on the Hinkley power plant, he said, Lucas was in her constituency: “I was in Westminster, so I could pop over to do the interviews.”

Other times, it’s Bartley who travels: “I’ve been over to Calais already, and I was up in Morecambe and Lancaster. It means we’re not left without a leader.”

The two Green leaders have had varied careers. Lucas has become a familiar face in Parliament since 2010, whereas Bartley has spent most of his career in political backrooms and wonkish circles (he co-founded the think tank Ekklesia). In the six weeks since being elected, though, they seem to have mastered the knack of backing each other up. After Lucas, who represents Brighton Pavilion, made her point about the green benches, Bartley chimed in. “My son is a wheelchair user. He is now 14," he said. "I just spent a month with him, because he had to have a major operation and he was in the recovery period. The job share allows that opportunity.”

It’s hard enough for Labour’s shadow cabinet to stay on message. So how will the Greens do it? “We basically said that although we've got two leaders, we've got one set of policies,” said Lucas. She smiled. “Whereas Labour kind of has the opposite.”

The ranks of the Greens, like Labour, have swelled since the referendum. Many are the usual suspects - Remainers still distressed about Brexit. But Lucas and Bartley believe they can tap into some of the discontent driving the Ukip vote in northern England.

“In Morecambe, I was chatting to someone who was deciding whether to vote Ukip or Green,” said Bartley. “He was really distrustful of the big political parties, and he wanted to send a clear message.”

Bartley points to an Ashcroft poll showing roughly half of Leave voters believed capitalism was a force for ill (a larger proportion nevertheless was deeply suspicious of the green movement). Nevertheless, the idea of voters moving from a party defined by border control to one that is against open borders “for now” seems counterintuitive. 

“This issue in the local election wasn’t about migration,” Bartley said. “This voter was talking about power and control, and he recognised the Greens could give him that.

“He was remarking it was the first time anyone had knocked on his door.”

According to a 2015 study by the LSE researcher James Dennison, Greens and Kippers stand out almost equally for their mistrust in politicians, and their dissatisfaction with British democracy. 

Lucas believes Ukip voters want to give “the system” a “bloody big kick” and “people who vote Green are sometimes doing that too”. 

She said: “We’re standing up against the system in a very different way from Ukip, but to that extent there is a commonality.”

The Greens say what they believe, she added: “We’re not going to limit our ambitions to the social liberal.”

A more reliable source of support may be the young. A May 2015 YouGov poll found 7 per cent of voters aged 18 to 29 intended to vote Green, compared to just 2 per cent of those aged 60+. 

Bartley is cautious about inflaming a generational divide, but Lucas acknowledges that young people feel “massively let down”.

She said: “They are certainly let down by our housing market, they are let down by universities. 

“The Greens are still against tuition fees - we want a small tax for the biggest businesses to fund education because for us education is a public good, not a private commodity.”

Of course, it’s all very well telling young people what they want to hear, but in the meantime the Tory government is moving towards a hard Brexit and scrapping maintenance grants. Lucas and Bartley are some of the biggest cheerleaders for a progressive alliance, and Lucas co-authored a book with rising Labour star Lisa Nandy on the subject. On the book tour, she was “amazed” by how many people turned up “on wet Friday evenings” to hear about “how we choose a less tribal politics”. 

Nevertheless, the idea is still controversial, not least among many in Nandy's own party. The recent leadership contest saw a spate of members ejected for publicly supporting the Greens, among other parties. 

“It was like a witch hunt,” said Lucas. “Some of those tweets were from a year or two ago. They might have retweeted something that happened to be from me saying ‘come join us in opposing fracking’, which is now a Labour policy. To kick someone out for that is deeply shocking.”

By contrast, the Greens have recently launched a friends scheme for supporters, including those who are already a member of another party. “The idea that one party is going to know it all is nonsense,” said Bartley. “That isn’t reality.”

Lucas and Bartley believe the biggest potential for a progressive alliance is at constituency level, where local people feel empowered, not disenfranchised, by brokering deals. They recall the 1997 election, when voters rallied around the independent candidate Martin Bell to trounce the supposedly safe Tory MP Neil Hamilton. Citing a recent letter co-signed by the Greens, the Scottish National Party and Plaid Cymru condemning Tory rhetoric on immigrants, Bartley points out that smaller parties are already finding ways to magnify their voice. The fact the party backed down on listing foreign workers was, he argued, “a significant win”. 

As for true electoral reform, in 2011, a referendum on changing Britain's rigid first past the post system failed miserably. But the dismal polls for the Labour party, could, Lucas thinks, open up a fresh debate.

“More and more people in the Labour party recognise now that no matter who their leader is, their chance of getting an outright majority at the next election is actually vanishingly small,” she said. “It’s in their interests to support electoral reform. That's the game changer.” 

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.