The Case Against the ECHR – The EU rejected it, why not Britain? (June 2022)
Sunak, and successors, must take on Strasbourg to uphold sovereignty and sound policy in the interests of Britain.
Rishi Sunak’s recent suggestion that he is prepared to take the U.K out of the European Convention of Human Rights (“ECHR”) is a particularly brave one, and one which appears necessary if his government is to deliver. Official estimates suggest there will be a 50% rise in migration on last year with 65,000 arrivals expected, the proposed bill to tackle this will “go as far as possible within international law” according to a source, said to be familiar with Sunak's thinking. The issue here is, upon assent, any Act aiming to address this migration crisis which upheld by our domestic courts, may still be held up in Strasbourg by the European Court of Human Rights (“ECtHR”).
The ECtHR has done this before, as recently 14th June 2022, the court granted an injunction 2022 which grounded the first flight to send asylum seekers to Rwanda. Priti Patel, then Home Secretary, characterised the decision as politically motivated. This was a significant one for Boris Johnson’s government, yet, presents a unique opportunity for Sunak’s. Namely, the opportunity is to make good on the empty promises following the review of the 1998 Human Rights Act (“The HRA”). If Sunak is to do so, he must address the ECtHR in the arena of political combat. For a government elected on the promise of Brexit this is a gift. Yet again, a pan-European entity (the ECtHR) has been caught, visibly overreaching into British domestic politics.
To understand why reconfiguring the UK’s relationship with the ECHR is potentially of value to Briton it is important to address the role of The HRA. The HRA– essentially an instrument of Tony Blair’s legacy – helps the ECtHR deal with its ongoing issues of mission-creep and federal-style overreach. It is crucial to note that the ECtHR began life as a 12-nation inter-state court, resolving state-on-state disputes. Today, it takes individual petitions from a jurisdiction of approximately 820 million people.[1] By its own admission, the caseload of the ECtHR has outpaced the court’s capacity. In 2011 it was discovered it may “take 46 years” for the court to address its backlog.[2]
To resolve this, the ECtHR has committed to a policy of “subsidiarity” – that is the use of national-level acts such as the HRA which divert cases away from it. This approach was restated in 2012’s Brighton Declaration and championed by David Cameron.[3] In short, the HRA is a solution to the ECtHR’s jurisdiction enlarging beyond its competence and ability to understand the nations it presides over. From prisoner voting to the Rwanda plan, the ECtHR, in line with its decision in Tyrer, has been bringing the UK more in line with “commonly accepted standards” seen in “member states of the Council of Europe”.[4] Well over half of which remain in the EU.
The European Union (“EU”) understood this when it decided the ECtHR was likely to work against its own internal interests. The EU was never able to agree to an Accession Agreement with the ECtHR, arguably, it actively torpedoed such efforts. On December 18th 2014, after lengthy negotiations, the EU’s own multi-nation court, the CJEU, ruled that a draft Accession Agreement is incompatible with EU law.[5] Perhaps by pure coincidence, this came after the Jordanian government ceased accepting refugees from Syria; the catalyst for the 2015 migrant crisis in Europe.
Councillor of the Supreme Court of the Netherlands, Martin Kuijer, commented that the “tone of the [CJEU’s] opinion raised eyebrows”,[6] chiefly because the CJEU placed greater importance on the safeguarding of its exclusive jurisdiction above the future of human rights protections in Europe. The CJEU’s opinion “seem[ed] to have been written with one purpose only: to kill off accession altogether”.[7] The CJEU itself admitted the jurisprudence of the ECtHR was incompatible with “certain specific features of [European] Union law as they currently exist”.[8]
This seldom-discussed battle of legal wills shows that the ECHR can, and has acted against the interests of signatory nations. Sunak may needs to emulate the EU’s resolve if he is to win the favour of his core supporters. With a parliamentary majority of 75 the Conservatives currently possesses it is entirely possible the government could create “certain specific features of UK law” which would ensure total independence from the ECtHR’s rulings. The main obstacle facing the government is the presence of the HRA, which allows courts to rule that legislation, or ministerial actions, is incompatible with the ECtHR’s founding convention.
The government already has a track record of successfully creating legislation which, ought reasonably, be interpreted as incompatible with the ECtHR’s founding convention. Namely, The Coronavirus Act (2020). Campaigner Simon Dolan made the most significant challenge in a higher court to the lockdown, this cost a private individual £684,535, and was rejected.[9] The decision in Dolan & Ors, R (On the application of) v Secretary of State for Health and Social Care & Anor [2020] EWCA 1605 proved that the largest suspension of human rights in recent British history could be deemed compatible, in its entirety with the HRA, and the ECtHR.
This begs the question. Why is the government not willing to utilise its majority to produce legislative outcomes that are actually desirable to their core supporters? A 2011 poll found 75% of UK adults felt the HRA was applied “too widely to create rights that it was never intended to protect”.[10] 77% of Britons agree that illegal immigration is a serious problem facing the UK.[11] In the words of 16th century lawyer Richard Moryson, if Johnson is to save himself a disastrous election defeat, it is his duty to act like an “English tailor” making an “English gown” of European human rights law.[12] If it is to do so, both substantive change to the duties the HRA places on the state and withdrawal from the ECtHR’s jurisdiction must remain on the table.
[1] Council of Europe ‘Map and Members’ < https://www.coe.int/en/web/tbilisi/the-coe/objectives-and-missions> accessed 24.06.21.
[2] Michael Pinto-Duchinsky, Bringing Rights Back Home: Making Human Rights Compatible With Parliamentary Democracy in the UK (Policy Exchange 2011) 11..
[3] European Court of Human Rights, “Brighton Declaration” (April 2012) <https://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf> accessed 10.06.2021
[4] Tyrer (n19).
[5] Martin Kuijer, ‘Fundamental Rights Protection in the Legal Order of the European Union’ in S. Blockmans and A. Lazowski (eds), Institutional Law of the European Union(Elgar Publishing 2016), 220–59.
[6] Martin Kuijer (2020) ‘The challenging relationship between the European Convention on Human Rights and the EU legal order: consequences of a delayed accession’ (2020) 24:7 International Journal of Human Rights, 998.
[7] Ibid.
[8] See the view of Advocate General Kokott, delivered on 13 June 2014 (ECLI:EU:C:2014:2475) avaliable at < https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62013CP0002> accessed 23.06.21.
[9] Simon Dolan, ‘Join the Legal Challenge to the UK govt lockdown’ (2020) <https://www.crowdjustice.com/case/lockdownlegalchallenge/ > Accessed 14.06.21
[10] Yougov, 2011 <https://yougov.co.uk/topics/politics/articles-reports/2011/08/26/what-place-human-rights>accessed 24.06.21.
[11] https://szazadveg.hu/en/project-europe
[12] Richard Moryson ‘Discourse Touching the Reformation of the Lawes of England; (1535), BL, Royal MS A 18L fo. 24.