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The case for leaving the ECHR - article for Unherd by Professor Richard Ekins - 11.08.23

Richard Ekins KC (Hon) is Professor of Law and Constitutional Government at the University of Oxford and Head of Policy Exchange’s Judicial Power Project.

Was it Theresa May who broke the taboo? In April 2016, in her only public speech during the Brexit referendum campaign, the then Home Secretary reluctantly concluded that the UK should remain in the EU, but leave the European Convention on Human Rights. This was the first time a cabinet minister had openly called for withdrawal from the ECHR.

Of course, when she became Prime Minister three months later, she attempted no such thing, perhaps reasoning that leaving the EU was quite enough work for the moment. Still, the question has not gone away. The Government says that it remains committed to UK membership of the ECHR, but, as the Channel crisis continues, its commitment seems to be waning.

Earlier in the year, Rishi Sunak, was reported to be considering contesting the next election on a commitment to withdrawing from the ECHR if the European Court of Human Rights were to find his new immigration legislation incompatible with the Convention. Only this week, Robert Jenrick, the Minister for Immigration, said that the Government would do “whatever is necessary” to stop “the small boats”, clearly implying that this included withdrawal from the ECHR.

The Supreme Court will soon hear the Government’s appeal in the Rwanda litigation, and the Government may well prevail. The Court of Appeal’s recent judgment, which held that removing asylum-seekers from the UK to Rwanda would breach Article 3 of the ECHR, is open to serious question, and the Supreme Court under Lord Reed’s leadership is a much more legally disciplined institution than when he took over from Lady Hale in January 2020.

If the Government’s appeal succeeds, the litigants will proceed to the Strasbourg Court, which may eventually find against the UK. But more immediately, well in advance of any final judgment, an anonymous judge of the Court may indicate “interim measures” under Rule 39 of “The Rules of Court”, which would instruct the UK not to carry out removals until some later date.

The Strasbourg Court’s Rule 39 practice is incompatible with the text and structure of the ECHR and should be firmly rejected: the Convention confers binding force on final rulings of the Court, but not on “interim measures”. Section 55 of the Illegal Migration Act 2023 seems to recognise this, providing ministers with the power to decide whether or not to remove a person from the UK despite an “interim measure”.

This is an oddly framed power, and it is a miracle that it was ever enacted. Between government lawyers and the law officers, it is very difficult for the Government even to put before Parliament legislation that the Strasbourg Court might in the end disapprove.

This points to a wider problem with ECHR membership. The doctrine of parliamentary sovereignty provides that whatever the King-in-Parliament enacts is law. Legislative freedom is the centrepiece of the Westminster model and it is for Parliament, in conversation with the people, to decide freely what the law should be.

However, membership of the ECHR and subjection to the jurisdiction of the Strasbourg Court means that Parliament’s freedom to legislate is exercised under a cloud: deliberation within Parliament is often distorted by reasoning not about the merits of proposed legislation but about its compatibility with the case law of the European Court of Human Rights. The problem has been vividly apparent in relation to the Government’s various attempts to address lawfare against UK armed forces.

Strictly, Parliament is free to enact whatever legislation it sees fit, even if this is incompatible with the UK’s international treaty obligations: it is crystal clear that legislation which is incompatible with a treaty remains valid law, which everyone, including civil servants, is obliged to obey.

Still, there are very good reasons for the Government to be slow to propose, and for Parliament to be reluctant to enact, legislation that would place the UK in breach of its international obligations. The UK’s reputation matters: so too does international order.

The problem with the ECHR, then, is not that it is an international treaty. The problem is that the Court has made it into a dynamic treaty. Rather than simply upholding the terms agreed by the member states, the Strasbourg Court has, since the Seventies, said that the ECHR is a “living instrument”, the meaning of which changes as the Court decides a succession of cases and divines a changing European consensus.

Deploying this approach, the Court has remade the Convention, imposing far-reaching new obligations on states and driving its own vision for social, moral and political reform across Europe. Most strikingly, the Strasbourg Court has invented a whole new European law of immigration and asylum which has no foundation in the text.

But the Court’s case law distorts legislative deliberation and government policy-making across the field, including in relation to welfare policy, social policy, penal policy, counter-terrorism, military action, housing, taxation and press freedom.

There is, as a result, a vast gap between the express terms of the ECHR and the case law that the Strasbourg Court now applies. Enthusiasts for the status quo routinely overlook this.

In a nicely executed piece of Guardian agitprop in 2016, responding to Theresa May’s call to leave the ECHR, Patrick Stewart features as a new Prime Minister railing against Europe’s assault on British sovereignty.

At one point, he asks his cabinet: “What has the ECHR ever done for us in return?” Nothing, reply his ministers, apart from providing the right to fair trial, the right to privacy, freedom from torture, freedom of religion, freedom of expression, freedom from discrimination, freedom from slavery and so on.

The response is absurd because the protection of rights and freedoms in the UK long predates the ECHR — we do not owe fair trials or the abolition of slavery to the Strasbourg Court. The sketch itself recognises this when it goes on to say that the British drafted the Convention to help Europe sort itself out.

In any case, the problem is not with the terms of the ECHR, but with the Strasbourg Court’s departure from them. This is revealed by what the sketch’s writers left out. At one point, Stewart mocks David Cameron’s remark about feeling “physically ill” at the thought of introducing votes for prisoners. But the sketch does not include prisoner voting in its litany of “what the ECHR has done for us”. Nor does it mention that the Strasbourg Court invented a right to prisoner voting, a right which the member states did not intend to create.

The UK Parliament, in response, refused to change the law to comply with the Strasbourg Court’s 2005 ruling. Yet 12 years later, the Committee of Ministers, which monitors compliance with judgments of the Strasbourg Court, gave the UK a clean bill of health — a fudge designed to obscure the fact that the UK had not changed its legislation as the Court demanded.

Principled defiance of the Strasbourg Court is therefore an option. With Parliament’s support, the Government could refuse to comply with judgments that brazenly misinterpret the text of the ECHR and thus depart from the terms that the UK, like other member states, agreed.

The Supreme Court made the case for such defiance in 2015, in a judgment about the case law of the Court of Justice of the EU, which is also inclined to exceed its jurisdiction. Still, it is much easier for Parliament to refuse to amend or repeal legislation that the Strasbourg Court has denounced than for the Government to propose new legislation that it fears the Court will denounce.

Whether in relation to the Channel crisis or more generally, the Government should not use membership of the ECHR as an excuse for failing to propose legislation that in its view is necessary and justified. Rather, it should recognise that leaving the ECHR would restore Parliament’s freedom, on behalf of the British people, to decide what our laws should be.

Crucially, this is not a party-political matter, even if it looks set to become one. Bringing the Strasbourg Court’s jurisdiction over the UK to an end would strengthen parliamentary democracy, regardless of which party forms a government and enjoys a majority.

The case for leaving the ECHR - article for Unherd by Professor Richard Ekins - 11.08.23
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