UK membership of the ECHR: continuation of ‘unfinished business’ or a window of opportunity?

18 May 2017.pngThis post proceeds on the assumption that the Conservatives will win the June election, with their manifesto commitment that withdrawal from the ECHR (‘BrECHRit’) will not occur in ‘the next Parliament’. It is submitted that such a scenario poses a threat, but also offers a window of opportunity. The threat is that there will be a continuation of what we have seen since around 2012 (if not before): the implied threat to withdraw, and heated anti-Strasbourg rhetoric every time UK-Strasbourg relations come under strain (with damaging effects on the ECHR). The opportunity is that we now have a period to push forward the case for the UK’s continuing membership of the ECHR, based on careful and informed analysis of the Strasbourg system as it functions today (not one based on dated or false narratives) and affects the UK. This information can then be drawn upon for when debate on the UK’s membership of the ECHR resurfaces, which, I contend, is highly likely to happen – unless arguments are presented in a convincing way to stop that.

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With the Conservative Party well ahead in the opinion polls, the publication of their manifesto today was met with a sighs of relief by human rights lawyers in the UK, and in Strasbourg. It states that:

The UK will remain a signatory to the ECHR ‘for the duration of the next Parliament’.

That the Conservatives will not ‘repeal or replace’ of the Human Rights Act ‘while the process of Brexit is underway’, but that ‘we will consider our human rights legal framework when the process of leaving the EU concludes’.

These proposals will disappoint some.

Last December The Daily Telegraph reported that ‘BrECHRit’ was to be included in (what was then assumed to be) the Conservatives’ 2020 manifesto. Recently Lord Faulks QC advocated that the UK should seize the moment to obtain a ‘substantial majority’ in the next election to ‘enable the Prime Minister to leave the jurisdiction of the ECHR’. As a member of the Commission on a Bill of Rights (of 2011) Lord Faulks (with Jonathan Fischer QC) published a separate opinion ominously entitled, ‘Unfinished Business’ (other separate opinions feared that the UK was on a path to withdrawal from the ECHR).

It seems highly unlikely, however, that we have heard the last on ‘BrECHRit’, and rather likely that the ‘unfinished business’ narrative will endure. Is there not every chance that matters will continue in the vein of recent years with certain politicians projecting an enduring, implied threat of ‘BrECHRit’, each time UK-Strasbourg relations flare up?

To that end, aside from more familiar issues that seem likely to come round again – the rights of non-deportable suspected terrorists, human rights and immigration issues etc – the manifesto signals another future flash point. It states that

“British troops will in future [not] be subject to…  the [law of] the European Court of Human Rights”.

Whilst domestic law can be amended to that effect – which, presumably, would involve an amendment to the Human Rights Act – the above goal is not possible while the UK is a member of the ECHR. (To be fair, the manifesto probably refers to a proposed UK derogation from the ECHR; but that would be subject to Strasbourg review, ultimately at least).

So, there seems a good chance that Prime Minister Theresa May will have another item to add to her anti-Strasbourg list of April 2016. Back then (when, in fact, she was Home Secretary) she complained:

“The ECHR can bind the hands of Parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of Governments like Russia’s when it comes to human rights… If we want to reform human rights laws in this country it isn’t the EU we should leave but the ECHR and the jurisdiction of its Court.”

Threat and window of opportunity?

Against this overall backdrop, I predict that under a future Conservative government we are very likely to see a continuation of what has occurred over the last few years: denigration of the ECHR, and an implied threat to withdraw at some stage (if not within the next Parliament). Could a future Conservative manifesto (2022) include a commitment to withdraw?

The overall situation just described can only have a harmful, destabilizing effect on the Convention system. Its beleaguered situation is such that it desperately needs the firm support of countries like the UK if it is to stand a better chance of fulfilling its vital mission of helping to achieve democratic security across Europe.

The window of opportunity, then, is that we now have a period of time in which we know there will be no withdrawal. This can be used to: (i) bring some balance to some of the sweeping arguments politicians have employed against the ECHR; and (ii) to underline why preservation of, indeed fulsome support for, the Convention is consistent with the UK’s national interest.

I will leave (ii) to a future post – and intend to follow this up with future posts and research.

As for (i), a range of diverse arguments and issues are usually brought up in attacks on the Court, often amounting to sweeping claims or assertions, as with (I submit) the passage from Theresa May quoted above. It is time for some balance and detailed consideration of the arguments – here too there will be future posts and research.

The benefits of careful consideration of the actual arguments?

To demonstrate how a detailed consideration of issues related to ECHR withdrawal is worthwhile to gaining a proper understanding of them, let us briefly consider the prisoner voting saga.

Without recounting all aspects, we should recall that February 2011 witnessed the House of Commons strongly rejecting a change in the law, and by a very large majority. The relevant debate hardly engaged with the substantive issues related to prisoner voting, being dominated by an anti-Strasbourg agenda. The rhetoric continued even after the ECtHR adjusted its position in 2012 in a case of concerning Italy (Scoppola), which the UK was given permission to intervene in, and which, arguably, broadened the margin of appreciation available to it.

It is striking, however, that since 2013-2014 the political rhetoric on this topic has almost evaporated. Why might that be? One cannot say for sure, of course, but let us consider the following.

In 2013 over two days seven Justices of the Supreme Court heard a case on prisoner voting (Chester), arguments being presented from ten barristers, including five QCs. Having engaged with the issues, the ensuing judgment (October 2013) recognised that Strasbourg’s position deserved respect; the merits and demerits of prisoner voting were finely balanced. Baroness Hale expressed ‘some sympathy for the view of the Strasbourg court that our present law is arbitrary and indiscriminate’ (para 98). Lord Sumption was more critical of Strasbourg, but he agreed that it was ‘an extreme suggestion’ to suggest that the matter at stake was ‘a fundamental feature of the law of the United Kingdom’ (para 137).

In December 2013, a Joint Parliamentary Committee reported on the prisoner voting issue. Many thought that it would endorse the ‘no-reform’ position adopted by MPs and encouraged by (former) PM Cameron’s infamous ‘physically ill’ statement. Lord Phillips, a member of the Committee, subsequently recounted how, ‘from first to last’ a ‘minority of the Committee, including its chair, was resolutely determined’ to ‘enact a statute designed to defy Strasbourg’.  Yet, upon close examination of the issues, and after taking evidence from over 40 experts, the Committee concluded that there was a case for reform of UK law. It noted that only a comparative minor change was necessary, and proposed such a course.

To be clear, the Committee’s Report has been ignored by the government, which asserts that MPs have no appetite to change the law.

Nonetheless, the point I wish to make is that the calm, careful, detached and dispassionate analysis provided by the UK Supreme Court and a Joint Parliamentary Committee has exposed the inaccuracy of the earlier political rhetoric on this matter.

It also brings into focus comments such as that made by Theresa May (above), that the ECHR ‘bind[s] the hands of Parliament’. The prisoner voting issue was quite revealing in that regard. After all, the UK is only required to reform the law within the very broad boundaries Strasbourg has delineated, and in a way that a specialist Committee of Parliament supported!

Time for the same type of calm, careful, detached and dispassionate analysis of the other issues related to ‘BrECHRit’? I think so.

Implementation of Judgments of the European Court of Human Rights

bing 15 mayThank you very much indeed to the Bingham Centre for the Rule of Law (working with Leicester Law School) for hosting a highly interesting and informative event on the state of play regarding execution of Strasbourg judgments. The event was last night, and, I believe, a summary will appear on the Bingham web site in due course.

Merris Amos (QMUL) presented a insightful paper focussing in UK cases, against the backdrop of UK-Strasbourg relations and the domestic landscape of human rights protection; in her paper Eleanor Hourigan (Dep Permanent Representative, UK Delegation to the CoE) offered some insiders’ perspectives on the Committee of Ministers’ process ; Nuala Mole (Aire Centre) provided reflections on her long experience as a Strasbourg litigator, offering some suggestions on areas for improvement; and Prof Philip Leach EHRAC/ Middlesex University added to those perspectives with some important and graphic illustrations of why the process of execution is so important, and the challenges being thrown up.

In between I presented a paper with my own reflections on matters, especially with an eye to the Committee of Ministers’ 2016 Annual Report on the execution of judgments. In case it is of interest, here is the PowerPoint presentation that I used: E Bates Implem Judgments Bingham

‘Implementation of Judgments of the European Court of Human Rights: Opportunities and Challenges for the Rule of Law’ (Bingham Centre for the Rule of Law), 15th May 2017.

bing 15 may

On 15 May 2017, the Bingham Centre and Leicester Law School are organising an event in London, focusing on the implementation of the Court’s judgments.

Speakers at the event will discuss the UK’s record of implementation and the impact of the Court’s judgments in the UK. They will consider the UK government’s recent report ‘Responding to Human Rights Judgments’ which outlines its position on the implementation of the Court’s judgments and responds to recommendations made by the Joint Committee on Human Rights in its 2015 scrutiny report ‘Human Rights Judgments’. We will also hear a UK government perspective “from the inside” on the Committee of Ministers and its work supervising the execution of judgments.

Speakers will then consider the wider picture of implementation across the member states and will reflect on the process for the execution of judgments and the role of the Committee of Ministers in this regard.

Further details of the event, including the speakers can be found here: https://www.biicl.org/event/1258

Download the event flyer.