Written by Sam Freeman
What would be the impact of the UK withdrawing from the ECHR?
Who’s talking about it?
Following the thwarting of the Rwanda policy former Prime Minister Rishi Sunak indicated leaving the European Convention on Human Rights (ECHR) could be on the agenda.[1] Despite the election of a new government and the cancellation of the Rwanda scheme, the continued debates within the UK on how to handle immigration generally and particularly asylum seekers has led to Conservative Party leadership candidate Robert Jenrick vowing to include a pledge to immediately withdraw from the ECHR if elected citing his “practical experience” as the previous government’s immigration minister prior to his resignation in December 2023.[2] This criticism comes amid a rising tide of criticism across Europe – particularly from the populist right with Hungarian President Viktor Orban repeatedly attacking the convention with a more recent challenge to the convention coming from Donald Tusk’s announcement of a suspension of the right to asylum in October 2024.[3]
Background
The Previous UK governments proposed policy to deport some asylum seekers to Rwanda, with the stated aim, among others, of reducing small boat crossings via the English Channel received initial clearance from the High Court on 10th June 2022 before a last-minute injunction was issued under rule 39 of the ECHR on four days later on the day the first flight to Rwanda was scheduled to depart. The injunction related to the case of N.S.K, an Iraqi national, set to be deported to Rwanda on the flight in question with the court ruling that the UK judiciary had failed to adequately consider the safety of Rwanda or the suitability of its asylum system.[4] The subsequent finding of the Supreme Court, concurring an earlier judgement from the Court of Appeal that asylum seekers deported to Rwanda faced a significant risk of ill-treatment after being returned to their country of origin due to deficiencies in its asylum system.[5] The government’s response, effectively overriding the UK courts in unilaterally declaring Rwanda safe through an act of Parliament, passed in March 2024 after several delays, was itself the subject of scepticism in Strasbourg with commissioner Michael O’Flaherty pointing to “major issues” with the legislation’s implications for judicial implications.[6]
What would leaving the ECHR entail?
European Convention of Human Rights is a treaty of the Council of Europe and so any withdrawal from the obligations of the ECHR would likely necessitate a withdrawal from the council.[7] Voluntary withdrawal has only occurred once in the history of the ECHR after the withdrawal of Greece, facing expulsion for human rights abuses, in 1970 before rejoining in 1974 following the restoration of democracy. Russia was ejected from the Convention in 2022 following the invasion of Ukraine, whilst Belarus is the only country in Europe (with the exception of the Vatican City) to never have been a member due to its continuation of practices such as the death penalty violating the convention’s statutes. Thus, an immediate concern from a UK withdrawal, highlighted by several legal figures opposed to the plan would be an apparent undermining of the UK’s ‘soft power’ image on the international stage, with Law Society President Lubna Shuja warning that withdrawal from the ECHR would “mean the UK would sit as an outlier in Europe.”[8]
Beyond this, logistical difficulties with exiting the ECHR have led opponents to suggest doing so would be impractical. In the first place, precedent set out by the Brexit process means that an act of Parliament would be required for the UK to withdraw, eliminating the prospects of this policy being enacted in the immediate future given the governing Labour Party’s substantial majority and opposition to leaving the convention. Additionally, the UK’s human rights are currently primarily codified through the 1998 Human Rights Act, which incorporates rights set out by the ECHR into UK law.[9] Any decision to leave the ECHR would therefore necessitate the creation of a new Act of Parliament to safeguard British human rights.
Could UK human rights be threatened by withdrawing from the ECHR?
Proponents of such a move have long argued for the replacement of the existing Human Rights Act in favour of some form of “Bill of British Rights” setting out many of the rights currently protected by membership of the ECHR. Whilst such a plan might initially seem relatively harmless to British rights critics have pointed to a number of flaws with this solution. For one, UK citizens would lose the right to bring human-rights related appeals to the Strasbourg-based court, a particular concern given the finding by a cross-party parliamentary group in 2022 that ministerial criticisms of court decisions were undermining the independence of the UK’s own judiciary.[10]
Further concern surrounds the contents of any bill that might replace the Human Rights Act. With much of the discourse around withdrawing from the ECHR focussing on its creation of ostensibly unnecessary difficulties in removing failed asylum seekers, or those with cases still pending, it appears inevitable that any such replacement bill would include weakened rights for these groups compared to much of Europe. However, the evolution of the debate beyond its initial focus on the Rwanda scheme has prompted concerns. Jenrick’s accusation that the possibility of their being released by the ECHR has led to the British army opting to commit war crimes and “kill rather than capture” suspected terrorists has led to questions about the respect for due process in any future government headed by him.[11] Whilst the precise proposals of any future Conservative government’s human rights legislation remain unclear the previous administration’s attempts to reform the law under Justice Secretary Dominic Raab drew criticism from groups such as Liberty for giving courts enhanced powers to dismiss ‘trivial’ human rights claims.[12] Other opposition groups criticised the bill’s attacks on ‘Positive Obligations’ on public bodies to actively protect rights rather than merely refrain from violating them pointing to historic cases such as the Hillsborough inquest where these rights were instrumental in securing justice.[13]
Finally, withdrawing from the ECHR would pose substantial issues for the continuation of the Good Friday agreement which depends on the ECHR’s judgements being observed both in the UK governed Northern Ireland and the Republic of Ireland. In examining the proposals, the House of Commons’ Northern Ireland Affairs Committee found that a withdrawal from the ECHR would likely be impossible without triggering a review procedure built into the agreement.[14] This procedure would then require a comprehensive review of the agreement in conjunction with the already polarised Northern Ireland assembly threatening to re-open the wounds of a conflict that spanned decades and led to civilian deaths in the thousands. Overall then, leaving the ECHR would appear to present both a range of practical issues and a threat to existing British rights.
[2] Jenrick denies he would drop hard-right policies if he became Tory leader | Robert Jenrick | The Guardian
[4] Interim measure granted in case concerning asylum-seeker’s imminent removal from the UK to Rwanda (1).pdf
[5] R (on the application of AAA (Syria) and others) (Respondents/ Cross Appellants) v Secretary of State for the Home Department (Appellant/ Cross Respondent) (supremecourt.uk)
[11] Robert Jenrick doubles down on accusation SAS kill not capture terrorists due to ECHR | Politics News | Sky News
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