Alessandro Maxim Boschin (MA Student in International Comparative Relations)
BR-each it!: Will the UK withdraw from the European Convention on Human Rights following its fears for migration flows?
A recent decision of Suella Braverman, now ex. UK Home Secretary from 14 November 2023, after her recent sack by Sunak, re-sparked a dreary idea in the minds of British citizens: to withdraw from the European Convention on Human Rights (ECHR). Before being removed from her role, not because of this claim, but for other more problematic allegations on Sunak himself, Braverman returned on one of her winning horses, her dream for the UK to leave the ECHR, thus practically releasing the UK from the external judicial surveillance of the European Court of Human Rights (ECtHR) on the respect of the rights of the ECHR.
But why is the ECHR that important? In essence, the ECHR aims to ensure the respect of the human rights and principles it contains over the territories of the States named at the time of the ratification. In addition, the Convention grants to individuals of any nationality within the “jurisdiction” of its 47 member States the capacity to apply to a full time, while the jurisdiction of the ECtHR extends to any matter concerning the interpretation and application of the Convention and related Protocols.
The withdrawal from the ECHR is not impossible, art.58 ECHR clearly defines the procedure for a State to “denounce”, in other words, to leave the Convention. But is it worth it? Spoiler, no.
Suella Braverman is known for her fierce political stance on the UK's migration issues. It is because of the general discontent of UK citizens for the recent-years migration policies, ministers such as Braverman were elected.
As a consequence, it is from the denunciations of the empowerment of the ECtHR which challenges domestic policies which contravene the ECHR, that the first proposal in August 2022 to withdraw from the ECHR was made by Suella.
The politicization attributed by Suella to the ECtHR comes from the threat this poses to ministers' decisions regarding mainly the national immigration policy and for UK’s sovereignty.
The most compelling instance is the UK's “Illegal Migration Act”, which received the attention and concerns of the Council of Europe through a resolution stating that such Act would “increase legal uncertainty and conflicts between UK domestic law and the requirements of the ECHR”. The Act aimed at stopping the small boats passing through the English Channel, faces scrutiny for potentially conflicting with international obligations under the ECtHR and the UN Refugee Convention. This suggestion came from Braverman and other British ministers, who have expressed determination to curb illegal immigration, even hinting at defying court rulings to achieve this goal in the form of a deserting “whatever it takes”. The “Illegal Migration Act has been ruled upon by the British Supreme Court this 15 November, which found the Act unlawful under international law. More specifically, the Supreme Court agreed on the potential violation of art.3 ECHR, declaring thus the Act as dangerous for asylum seekers who would then be at risk of ill-treatment when sent back to Rwanda. The ECtHR blocked such policy through Rule 39 injunctions. In addition, such decision was backed by the UK Court of Appeal which recognised the violation of art.3 ECHR - prohibition of torture, inhuman or degrading treatment or punishment.
Another expression, which resonates well enough with the one of Braverman is the “whatever is necessary” of the present UK immigration minister Robert Jenrick, who already in August 2023 proposed the UK as the next departing country from the ECHR, as a sort of successor of Russia, although in this case in a completely deliberate fashion.
Even though Jenrick assured Sunak that he could reach a block of the English Channel boats even with the UK remaining as High Contracting Party to the ECHR. Both ministers Robert Jenrick and Suella Braverman show a worrying trend for human rights protection in Europe, which takes the form of the freedom of negating the rights so long pursued as well as a judicial external organ bearing the prerogative of ensuring the uniform application and interpretation of the ECHR, in the presence of violations of the Convention especially from State organs and officials.
The decision to leave the ECHR was strongly condemned first by the Labourist Charlie Falconer, who claimed that the first proposal of leaving the ECHR of Jenrick was “deliberate[ly] undermining of the law and lawyers by the government”, secondly, by The Law Society, the professional body for solicitors in England and Wales. The president of The Law Society, Lubna Shuja, also stated that “ Leaving the ECHR would mean the UK would sit as an outlier in Europe, alongside only Russia and Belarus, who are already outside the convention.”.
However, the positions of Jenrick and Braverman should not surprise. The UK had many times mixed feelings on the Convention and on its application. The UK showed scepticism in the functioning and effectiveness of the ECHR which, most likely, developed in time since Golder v. United Kingdom (Judgement of 21 February 1975; Application no. 4451/70) where, regarding the interpretation of the ECtHR on the right to “access the Court” thus art.6 ECHR - Right to a fair trial, the UK saw the European Commission of Human Rights, which had preliminary examination power and therefore it could decide whether a case was admissible in court, as an extremely creative organ. The UK at that time believed that the ECHR had to be interpreted in its substantive text restrictively.
However, it is the dynamic interpretation of the ECHR meaning a usually broadening interpretation which adapts to the present times and challenges, the very opposite to the restrictive interpretation of its text, that British citizens can count on an ulterior layer of protection for their rights at a 360°.
Legal experts caution that a withdrawal from the ECHR would leave the UK without the protections provided by the internationally respected ECHR and its overseeing international court. This move could isolate the UK on the global stage, worsening the already-tragic effects of Brexit, impacting its role in human rights issues, and jeopardizing agreements like the Good Friday Agreement and the Northern Ireland Protocol.
Departing from the ECHR would profoundly impact lawyers and citizens alike, stripping away crucial tools for defending fundamental rights across various domains even beyond immigration and asylum. Although alternative legal instruments exist, they would significantly pale in comparison to the breadth and efficacy of the ECHR. Furthermore, legal challenges against the government, often reliant on ECHR provisions, would be curtailed, limiting the capacity to hold the government accountable.
Therefore, the fear of “control” of the ECtHR, an international court of last instance, over the manifestly ill decisions of the ministers, spurred threats instead of dialogues. The declarations of withdrawal constitute a displeasing mix of the legislative and of the judiciary which enhances divisions and potential future lowering of the degree of protection of fundamental rights, both for UK citizens and for asylum seekers.
The proposals have been rejected because they are unlawful. However, these might be symptoms of something more ominous. The debate surrounding the UK's potential withdrawal from the ECHR reflects broader concerns about sovereignty, human rights, and international relationships, indicating profound cuts across the very pillars of the ECHR, democracy, human rights, and rule of law.
As O’Boyle, and Warbrick commented in 1995, the original idea behind the Convention was primarily that it would act as ‘an alarm that would bring . . . large-scale violations of human rights to the attention of other Western European States”.
Let’s try not to silence it.
ED BATES, The Evolution of the European Convention on Human Rights and Fundamental Freedoms.