Media reports yesterday suggested that Number 10 will delay proposals for a British Bill of Rights until after the process to leave the European Union has been completed. The reports also revealed that the Prime Minister,Theresa May could put plans to withdraw from the European Court of Human Rights (ECHR) in her 2020 Conservative Party manifesto. According to the Telegraph, the Prime Minister might attempt to “lift and shift” the ECHR into UK law. This process would involve replicating the ECHR in a new British Bill of Rights. The British Supreme Court would then be handed the responsibility for enforcing this new Bill of Rights. It is unclear how far these plans have advanced. The Telegraph reported that the PM “will” put these plans in her manifesto, while the Guardian reported that this is a campaign by some Conservative MPs to persuade her to withdraw from the ECHR. Theresa May should resist these calls for three key reasons.
The first, and perhaps most crucial reason why Theresa May should not withdraw from the ECHR is its significance in Northern Ireland. When the Good Friday Agreement was being drafted in the 1990s, the British and Irish governments, as well as Northern Irish political representatives used the European Court of Human Rights (ECtHR) in Strasbourg as a final court of arbitration to which aggrieved parties could apply for recourse. The rationale behind this was to provide nationalists in Northern Ireland - who were deeply suspicious of the Northern Irish Police Service who they considered to be unionists - with greater confidence and trust in the legal system. Following the Good Friday Agreement, the Northern Irish Police Service were required to abide by the ECHR and anyone who was not satisfied with their conduct could ultimately take their complaint the ECtHR.
The Good Friday Agreement explicitly requires that the ECHR has continual legal effect in Northern Ireland. The proposed model of lift and shift, and the replacement of the ECtHR with the British Supreme Court would not satisfy this requirement. The UK Government would therefore be required to renegotiate significant parts of the Good Friday Agreement in order to withdraw the UK from the ECHR. It is difficult to see how the UK Government could easily replace the ECtHR in any new agreement. Part of the reason that the ECtHr was able to reduce suspicion of the Northern Irish Police Service was because the Strasbourg Court was an international court, not considered to be British or unionist by nature. Replacing the ECtHr with the British Supreme Court would run the considerable risk of alienating Northern Irish nationalists and halting the renegotiation process.
If a new agreement was struck between the British and Irish governments and relevant parties in Northern Ireland, then it is probable that the agreement would require referendums in the Republic of Ireland and Northern Ireland to approve it. This is because the original agreement was approved by such referendums. The UK could not avoid this Northern Ireland problem by withdrawing just England, Wales and Scotland from the ECHR. Signatories to the ECHR are required to be members of the Council of Europe - an intergovernmental organisation which only accepts nation states as members.
Preventing human rights abuses abroad
The second reason why Theresa May should resist calls to withdraw from the ECHR is because the Convention helps prevent human rights abuses abroad. There are currently 47 signatories of to the ECHR. Many of these are Northern European states with robust human rights protections, but there are also countries which have weaker human rights records.. The most striking example is Russia.
Russia has been a signatory to the ECHR since 1998. The country makes up a considerable amount of the Strasbourg Court’s caseload with around 20,000 cases against it waiting to be processed. This compares to under 3,000 for the UK. Russia has frequently been frustrated by the judgments of the ECHR. For example, Vladimir Putin, the Russian President, was particularly annoyed by the ECtHR’s call for prisoners’ voting rights in Russia - a judgment which has proved similarly controversial in the UK. To date, the judgment has been ignored by Russia. Yet, the ECHR has led to concrete legal changes in Russia. The country has established a compensation system for those affected by the non-execution of domestic judgments, a problem which the ECtHR believes hurt "perhaps hundreds of thousands of people" in Russia.
Russia has also introduced new legislation on prison overcrowding, it has removed daylight-obscuring shutters from prison cell windows which were previously present in all cells. Since the ratification of the ECHR, Russian courts have sped up their working times considerably and the number of journalists been convicted of libel has reduced substantially. Moreover, the Russian constitutional court now routinely makes reference to ECtHR judgments in its rulings.
Last December, in response to judgments by the ECHR, Russia introduced a new law affirming the supremacy of its Constitutional Court over the Strasbourg Court. The new law allows the Russian Constitutional Court to declare rulings of international bodies “impossible to implement”. The law caused controversy abroad with many European media outlets reporting it to be an effective withdrawal from the ECHR by Russia. The ECtHR itself has been more sanguine about the law. The Council of Europe’s Secretary-General, Thorbjørn Jagland, has suggested that a “solution” to the problem of this new law should be possible: He stated that “…it will be up to the Constitutional Court of Russia to ensure respect for the Convention if it is called upon to act under the new provisions”.
This new law shows the hostility towards the judgments of the ECtHR among the Russian Government. If the UK were to withdraw from the ECHR, then this would provide Russia with the perfect excuse to do the same. This would have significant and negative effects on human rights and the rule of law in Russia.
The Supreme Court
The final reason why Theresa May should not withdraw from the ECHR is because it is unclear what changes critics want. In yesterday’s Telegraph report, Jeremy Wright, the Attorney General, is quoted as saying that “although we have no quarrel with the content of the ECHR, it is the way in which that document is applied that gives us difficulty.” This combined with the claim that the UK Government might lift and shift the ECHR suggests that the Government may choose to replicate the content of the ECHR entirely in a new British Bill of Rights and charge the UK Supreme Court with enforcing the rights held in this new British Bill of Rights.
In recent months, Conservative MPs and the more popular press have shown they are not adverse to strongly criticising the British legal system. Following the High Court’s decision to require a Parliamentary vote on the triggering of Article 50 - the device which begins the process of the UK leaving the European Union - the judges were declared “enemies of the people” by the Daily Mail. If the Supreme Court was charged with a new British Bill of Rights which included the ECHR, then it is highly likely that it would have to provide judgments which frustrated the UK Government and some elements of the press. The act of balancing the rights of different groups is inherently difficult and potentially controversial.
If Conservative MPs want the Supreme Court to take over the responsibilities of the ECtHR, then they must articulate where they believe that the ECtHR is mistaken in its interpretation of the ECHR. Until they do so, it is unclear whether the Supreme Court will be able to allay their criticisms.
The Prime Minister should resist calls to withdraw from the ECHR. The problem of Northern Ireland on its own should be enough to halt this plan in its tracks. The Good Friday Agreement was one of the most significant British political developments of the last 50 years. Withdrawing from the ECHR would require the Government to enter an extremely complicated period of renegotiation. But the ECHR benefits the UK in other ways. It allows human rights to be upheld in countries which have a more strained relationship with the concept. The most striking example of this is Russia. Since the ECHR was ratified in Russia in 1998, there have been significant and positive changes in Russian law. Yet, the Russian Government is clearly hostile to the Convention and to the Strasbourg Court. If the UK were to withdraw from the ECHR, then it would provide Russia with the perfect excuse to do the same. Finally, the plan to replicate the ECHR and replace the ECtHR with the British Supreme Court is flawed. It is highly likely that the Supreme Court’s judgments would prove equally controversial among some MPs and some parts of the press.
James Dobson is a researcher at Bright Blue