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

Photo: Getty Images/AFP
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Is Yvette Cooper surging?

The bookmakers and Westminster are in a flurry. Is Yvette Cooper going to win after all? I'm not convinced. 

Is Yvette Cooper surging? The bookmakers have cut her odds, making her the second favourite after Jeremy Corbyn, and Westminster – and Labour more generally – is abuzz with chatter that it will be her, not Corbyn, who becomes leader on September 12. Are they right? A couple of thoughts:

I wouldn’t trust the bookmakers’ odds as far as I could throw them

When Jeremy Corbyn first entered the race his odds were at 100 to 1. When he secured the endorsement of Unite, Britain’s trade union, his odds were tied with Liz Kendall, who nobody – not even her closest allies – now believes will win the Labour leadership. When I first tipped the Islington North MP for the top job, his odds were still at 3 to 1.

Remember bookmakers aren’t trying to predict the future, they’re trying to turn a profit. (As are experienced betters – when Cooper’s odds were long, it was good sense to chuck some money on there, just to secure a win-win scenario. I wouldn’t be surprised if Burnham’s odds improve a bit as some people hedge for a surprise win for the shadow health secretary, too.)

I still don’t think that there is a plausible path to victory for Yvette Cooper

There is a lively debate playing out – much of it in on The Staggers – about which one of Cooper or Burnham is best-placed to stop Corbyn. Team Cooper say that their data shows that their candidate is the one to stop Corbyn. Team Burnham, unsurprisingly, say the reverse. But Team Kendall, the mayoral campaigns, and the Corbyn team also believe that it is Burnham, not Cooper, who can stop Corbyn.

They think that the shadow health secretary is a “bad bank”: full of second preferences for Corbyn. One senior Blairite, who loathes Burnham with a passion, told me that “only Andy can stop Corbyn, it’s as simple as that”.

I haven’t seen a complete breakdown of every CLP nomination – but I have seen around 40, and they support that argument. Luke Akehurst, a cheerleader for Cooper, published figures that support the “bad bank” theory as well.   Both YouGov polls show a larger pool of Corbyn second preferences among Burnham’s votes than Cooper’s.

But it doesn’t matter, because Andy Burnham can’t make the final round anyway

The “bad bank” row, while souring relations between Burnhamettes and Cooperinos even further, is interesting but academic.  Either Jeremy Corbyn will win outright or he will face Cooper in the final round. If Liz Kendall is eliminated, her second preferences will go to Cooper by an overwhelming margin.

Yes, large numbers of Kendall-supporting MPs are throwing their weight behind Burnham. But Kendall’s supporters are overwhelmingly giving their second preferences to Cooper regardless. My estimate, from both looking at CLP nominations and speaking to party members, is that around 80 to 90 per cent of Kendall’s second preferences will go to Cooper. Burnham’s gaffes – his “when it’s time” remark about Labour having a woman leader, that he appears to have a clapometer instead of a moral compass – have discredited him in him the eyes of many. While Burnham has shrunk, Cooper has grown. And for others, who can’t distinguish between Burnham and Cooper, they’d prefer to have “a crap woman rather than another crap man” in the words of one.

This holds even for Kendall backers who believe that Burnham is a bad bank. A repeated refrain from her supporters is that they simply couldn’t bring themselves to give Burnham their 2nd preference over Cooper. One senior insider, who has been telling his friends that they have to opt for Burnham over Cooper, told me that “faced with my own paper, I can’t vote for that man”.

Interventions from past leaders fall on deaf ears

A lot has happened to change the Labour party in recent years, but one often neglected aspect is this: the Labour right has lost two elections on the bounce. Yes, Ed Miliband may have rejected most of New Labour’s legacy and approach, but he was still a protégé of Gordon Brown and included figures like Rachel Reeves, Ed Balls and Jim Murphy in his shadow cabinet.  Yvette Cooper and Andy Burnham were senior figures during both defeats. And the same MPs who are now warning that Corbyn will doom the Labour Party to defeat were, just months ago, saying that Miliband was destined for Downing Street and only five years ago were saying that Gordon Brown was going to stay there.

Labour members don’t trust the press

A sizeable number of Labour party activists believe that the media is against them and will always have it in for them. They are not listening to articles about Jeremy Corbyn’s past associations or reading analyses of why Labour lost. Those big, gamechanging moments in the last month? Didn’t change anything.

100,000 people didn’t join the Labour party on deadline day to vote against Jeremy Corbyn

On the last day of registration, so many people tried to register to vote in the Labour leadership election that they broke the website. They weren’t doing so on the off-chance that the day after, Yvette Cooper would deliver the speech of her life. Yes, some of those sign-ups were duplicates, and 3,000 of them have been “purged”.  That still leaves an overwhelmingly large number of sign-ups who are going to go for Corbyn.

It doesn’t look as if anyone is turning off Corbyn

Yes, Sky News’ self-selecting poll is not representative of anything other than enthusiasm. But, equally, if Yvette Cooper is really going to beat Jeremy Corbyn, surely, surely, she wouldn’t be in third place behind Liz Kendall according to Sky’s post-debate poll. Surely she wouldn’t have been the winner according to just 6.1 per cent of viewers against Corbyn’s 80.7 per cent. 

Stephen Bush is editor of the Staggers, the New Statesman’s political blog.