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Should the UK Leave the European Convention on Human Rights?

With the Government’s ongoing struggles to deliver its flagship Rwanda policy, and the increasing divisions within the Tory Party, the UK’s membership of the ECHR has come under greater scrutiny. Former Home Secretary Suella Braverman, former Prime Minister Liz Truss, and former Leader of the House of Commons Jacob Rees-Mogg, are among those who have called for the UK to quit the European Convention on Human Rights.

The Prime Minister himself hinted that withdrawal may be necessary, as he declared that controlling immigration was more important than membership of a foreign court. Indeed, flights to Rwanda were prevented in 2022 by a last-minute injunction from an ECHR judge.

A recent judgement by the court, which said that governments have a duty to protect people from climate change, should be a wake-up call as to the absurdity of this institution. However, while leaving the ECHR would be a positive step for the UK, it would be both publicly unpopular, and practically difficult. 

The European Convention on Human Rights was established in 1953 and sets out various rights and guarantees that apply to European citizens. The European Court of Human Rights is intended to uphold this convention, and can deliver binding judgements on member states who violate the outlined human rights.

All Council of Europe members, including the UK, ratified the ECHR and are thus legally bound by the treaty. UK public bodies like the police, hospitals, and local councils are expected to abide by ECHR rights. 

On the surface, all seems fine; a body which ensures that the rights of Europeans are respected by their states seems unlikely to face opposition. That is until the court abused its power of interpretation, and sought to undermine the sovereignty of elected parliaments. 

A recent judgement by the court ruled that the human rights of a group of elderly Swiss women were being violated by their government’s lack of action on climate change. It ruled that the ‘right to family life’ (Article 8), means governments have a duty to protect people from climate change. The original convention says nothing about climate change, and it is clear that the court has become political and overstepped its reach considerably. 

This outlines the problem with a dynamic court like the ECHR, as over time, various interpretations and rulings update European consensus on rights. The result is a noticeable difference between the original convention, and current judicial understanding. 

Climate change is an impossibly complex issue, and a court cannot, and should not judge whether a government has taken ‘sufficient action’. While there is broad consensus on the existence of man-made climate change, debate is ongoing as to the most efficient and effective ways that governments can combat it. We can’t have unelected judges deciding that governments are not doing enough, especially when climate change mitigation is an iterative process, with governments inevitably getting some things right, and others wrong. 

This ruling is binding and overrules our elected parliamentarians. These unelected judges can effectively invent new rights never mentioned in the original agreement. Our rights have always come from Parliament, not unelected judges in Strasbourg. 

Brexit was based on taking back control from unelected Europeans. Michael Gove told us that the European Union is ‘run by people … who none of us ever elected … and who none of us can sack’. In 2016, he was referencing those in the Commission determining monetary policy, and his argument holds true for the Strasbourg judges in 2024. 

While leaving the ECHR will restore Parliament’s freedom to decide our laws, withdrawing will be a logistical nightmare, and have serious consequences internationally.

The Good Friday Agreement, largely credited with ending the Troubles in Northern Ireland, requires the ECHR to be part of the law. Hence, if the UK withdraws from the ECHR, it violates this longstanding agreement. A new framework would have to be drawn up, which would require the approval and cooperation of the Irish Government, who are still an EU member. 

The UK’s post Brexit trade deal with the EU is also contingent on ECHR membership. The EU may terminate parts of the agreement if the UK withdrew, particularly around security matters. 

Reputationally, leaving the ECHR would be difficult. The only two European countries currently not members are Russia and Belarus, who are both renowned for poor human rights records.  

Internally, Rishi Sunak would face opposition from a number of cabinet ministers and Tory backbenchers were he to attempt a withdrawal. The Times suggested that around 12 cabinet members, including Chancellor Jeremy Hunt and Home Secretary James Cleverly, would oppose leaving the ECHR. 

The protection of rights in the UK goes back to the Magna Carta in 1215, long before the ECHR. Britain’s rights have historically come from parliament, and leaving the ECHR would restore its sovereignty. The British people deserve for their rights to be determined by our elected representatives in Westminster, not unelected, unaccountable judges in Strasbourg.

On the flip side, Leaving would see us join Russia and Belarus as the only non-members in Europe. And yet, many countries around the world, like the United States, Canada and Australia have great human rights records without foreign courts ruling on their behalf. 

The UK ought to leave the ECHR, remove the Human Rights Act from law, and replace it with a British Bill of Rights. This bill should have cross-party agreement, and be put to a confirmatory referendum by the British people, following approval by parliament. It must be noted that the Good Friday Agreement, and the UK’s trade and cooperation agreement with the EU would have to be revised, and it is unclear how willing the Irish government and EU would be to cooperate with a hostile UK government seeking withdrawal. 

The recent climate change ruling should alarm us all of  the political nature of the Strasbourg court, and give good enough reason to withdraw. A court that envisages its own rights, with legally binding judgements, is effectively above the nation state. The rights of British citizens need a democratic mandate from the people themselves, which is what Parliament has historically given us.

Brexit was supposed to be about taking back control from unelected officials; the ECHR being another example of that. While it must be conceded that withdrawal will be a colossal headache, it is the right thing to do for UK sovereignty.

Image: Christoph Scholz

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Australia has a terrible human rights record

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