ECHR

Three reasons why the Prime Minister shouldn’t withdraw from the European Convention

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.  

Northern Ireland

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.

Conclusion

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


 

Human rights and the armed forces

The Rt Hon Liz Truss MP, Britain’s first female Lord Chancellor, faces difficulty in her other role as Secretary of State for Justice. At the top of her list is likely to be the proposed British Bill of Rights and prison reform.

But she is also likely in her ‘red box’ to have the apparent ‘juridification’ of the armed forces. The Government is increasingly concerned that human rights legislation, particularly the European Convention on Human RIghts (ECHR), is being applied to the armed forces overseas. This issue continues to trouble the Ministry of Defence (MoD) which, since the start of the Iraq War, has received over 2,000 public and private legal claims relating to British military action. To date, the Government has found no way of preventing this juridification.

Legal history

The Political Scientist and former British Army Officer, Professor Anthony Forster, states that “for over 200 years wars have been governed by the laws of war and national legislation”. Specifically, laws have been applied to military personnel through both international humanitarian law (IHL) and domestic law.

IHL is commonly referred to as the ‘law of armed conflict’, or the ‘law of war’. IHL comprises of a number of international treaties which attempt to restrict the effects of armed conflict for humanitarian reasons. The rules and regulations of IHL are founded in a vast number of treaties, in particular the Geneva Conventions of 1949 and their Additional Protocols which were ratified during the 1970s.

Military behaviour has also long been restricted by domestic rules and laws. In 1731, the British Royal Navy introduced the first version of what is now known as the Queen’s Regulations. Since than, there have been a number of Acts which set out disciplinary frameworks for each of the services, with a single, harmonised disciplinary system governing all members of the armed forces introduced in 2005.

Since at least World War Two, it has been accepted in the UK that the special circumstances in which service personnel find themselves compared to civilians requires unique legal protections. This consensus resulted in principles such as ‘combat immunity’ and ‘Crown immunity’. The concept of ‘combat immunity’ has been defined as ”a common law doctrine that operates to exclude civil liability for negligence and deliberate damage to property or person committed by the armed forces during certain combat operations”. In practise, this meant that soldiers enjoyed immunity from prosecution in many forms of activity, including in the planning and preparation of attacks. Crown immunity prevented forces’ personnel injured while on duty from seeking compensation from the MoD.

The ‘juridification’ of the armed forces

Juridification is the process of increasing legal intervention in an area which had previously been based on trust. Tom Tugendhat MP, a former soldier, and Laura Croft, a barrister, published a paper last year with Policy Exchange. In the report they claimed that “recent legal developments have undermined the armed forces’ ability to operate effectively on the battlefield”. Professor Forster has agreed with these claims and argues that there “appears to be a strong case” that a process of ‘juridification’ of the British armed forces has occurred.

Forster, and Tugendhat and Croft, conclude that the ECHR has been the main mechanism through which cases have been brought against the MoD. Cases brought against the MoD usually fall into two categories; cases which relate to the armed forces’ treatment of civilians, and cases which relate to the armed forces’ treatment of their own personnel.

Armed forces’ treatment of civilians

There is one key case in the armed forces’ treatment of civilians; Al Skeini. In this case, the families of six Iraqis who died in Basra in 2003 brought a case against the MoD. They claimed that the British government had failed to carry out an investigation into the deaths of their relatives. Four of the relatives had been shot when British troops were conducting a patrol; one was an apparently innocent bystander who had caught in the crossfire between British troops and Iraqi gunmen; and the sixth died at a British base in the custody of British troops. The Rt Hon Geoff Hoon, the then Defence Secretary, decided not to order an independent inquiry into the deaths.

The British High Court, Court of Appeal and Law Lords all found that the Iraq War did not fall within the regional sphere of the ECHR. In order for the protections of the ECHR to apply, the actions of the state must occur within the state’s jurisdiction except in exceptional circumstances.

However, the European Court of Human Rights found that one of the exceptional circumstances in which the ECHR could apply extraterritorially was when a signatory exercised ‘public powers’ on the territory of another state. The Strasbourg Court found that the UK “assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government”, in particular “responsibility for the maintenance of security in south-east Iraq”. Thus, during the period in question, the UK “exercised authority and control over individuals killed in the course of such security operations” and, as a result, a jurisdictional link existed between the UK and the Iraqis who had been killed. The MoD was thus ordered to pay compensation to the 6 victims’ families.

Armed forces’ treatment of their own personnel

There have also been a number of cases relating to the armed forces’ treatment of their own personnel. The main set of these types of claim arose from an apparent friendly fire incident, called the ‘Challenger claims’. During the incident one soldier was killed and a further two were injured. The soldiers claimed that the MoD had failed to equip the Challenger tanks involved and had not offered soldiers adequate tank-recognition training.

The MoD argued that the claims should be struck out because at the time of their deaths and injuries, the British soldiers were not within the jurisdiction of the UK for the purposes of the ECHR. The UK Supreme Court followed the previous Strasbourg verdict and held unanimously that the claimants were in the UK’s jurisdiction for the purposes of the ECHR at the time of their deaths. The MoD thus lost the case and compensation was awarded to the soldiers involved.

Conclusion

There has been an explosion in claims against the MoD which has angered subsequent governments. The current Conservative Government believes these judgments have the potential to significantly limit the capabilities of British troops and is determined to find a remedy to them.

To date, no such remedy has been found. Appearing before the Justice Select Committee earlier this year, the Rt Hon Michael Gove MP - the then Justice Secretary - argued that “there might be a derogation when British troops are engaged in conflict in the same way that France has derogated [from some human rights obligations] in the aftermath of the Bataclan atrocity.” Gove was referring to the November 2015 Paris attacks where terrorists launched coordinated attacks in cafes, restaurants, theatres and outside the Stade de France. Following the attacks, France temporarily suspended some elements of the ECHR This may been one mechanism of preventing claims, but the responsibility for resolving the problem now falls to the new Justice Secretary, the Rt Hon Liz Truss MP.

James Dobson is a researcher at Bright Blue

In defence of the European Court of Human Rights

Whilst it may seem a little ridiculous to be discussing the Council of Europe and its European Court of Human Rights at this important moment in political history, after tomorrow’s referendum on Britain’s EU membership, regardless of the result, it is likely that attention will turn to what to do about the ‘other’ Europe. The Rt Hon Theresa May MP, the Home Secretary, and Boris Johnson MP have already, as part of their referendum campaigns, taken a position on each, highlighting the disagreement which currently reigns.

In late April 2016, Theresa May advocated remaining within the European Union (EU) whilst leaving the European Convention on Human Rights (ECHR). A month later, Boris Johnson urged voters to leave the EU but remain within the ECHR system telling his audience that “we wrote it” and that he was a “supporter of it”. Whilst Secretary of State for Justice, The Rt Hon Michael Gove MP, has promised that there are actually no immediate plans to leave the ECHR, it would seem that the issue is still very much on the agenda. The purpose of this blog post is to explain the importance of the European Court of Human Rights (ECtHR), a key part of the ECHR system of protection, to the United Kingdom (UK).

What are we trying to achieve?

Preparing her case against the ECHR, in her speech Theresa May set out her “clear principles” for Britain’s membership of international institutions:

“Does it make us more influential beyond our own shores? Does it make us more secure? Does it make us more prosperous? Can we control or influence the direction of the organisation in question? To what extent does membership bind the hands of Parliament?”

Missing from this list is anything to do with justice, the rule of law, morality or protecting individuals from the power of the State. It might not have a monetary value, but the oversight of an international human rights court can do much to make us a more compassionate and moral nation, setting the standard for many other countries around the world. Most importantly, the ECtHR can also help us to achieve an objective our sovereign Parliament has already agreed – the protection of human rights through law, an objective supported by the Conservative Party.

In the October 2014 proposals, Protecting Human Rights in the UK, it is stated that protecting fundamental human rights through law is a “hallmark of democratic society” and “central to the values of the Conservative Party”. The ECtHR has now been helping the UK to protect human rights through law for more than 50 years. Broadly, its contribution protects individuals, makes us a part of the global conversation on human rights and ensures our society develops in a way respectful of human rights. These different types of value are examined in more detail below.

Importance for individuals

The ECtHR employs an individual justice model and this means exactly what it says on the tin. Once remedies at the national level are exhausted, individuals can complain directly to the ECtHR that the State has breached their human rights. Although this prospect may be very far from the minds of most of the people of the UK, it is an option which is available and is something you can determine for yourself without relying on government or other public bodies to do it on your behalf. In 2015, the ECtHR allocated 575 applications against the UK to its judges to consider. In that same year, the ECtHR delivered 13 judgments concerning the UK and in four judgments found at least one violation of the ECHR. Whilst these figures are miniscule in comparison to those for countries like Russia, Turkey or Ukraine, it is not correct to say that individuals from the UK are not interested in complaining or no longer have valid complaints.

Whilst it is often thought that the Human Rights Act 1998 (HRA) now affords remedies for breaches of human rights for everyone, this is not actually the case. For example, the numerous complaints brought by families concerned to find out what really happened to their loved ones during The Troubles in Northern Ireland are not actually possible to bring under the HRA as the events occurred before the HRA came into force in 2000. Furthermore, an application to the ECtHR allows those marginalised, and possibly even excluded from the mainstream, an opportunity to have their human rights claim considered by a specialist court, independent of national political pressures and at minimal cost. Feelings of justice and acceptance of the decision are enhanced, regardless of the outcome. This opportunity provided by our membership is something to be proud of, and not dismissed as an inconvenient, and sometimes embarrassing exposé on the world stage.

Importance at the global level

Researchers routinely report that the work of the ECtHR has a global reach and a positive impact on the practice of all nations, not just those of the 47 Contracting States. The work of the ECtHR can help to highlight problems which have arisen in a country which could escalate into conflict which may have widespread repercussions. The ECtHR helps to set minimum standards across Europe meaning that the UK has a much better chance of dealing with like-minded states with the ECtHR providing an external and neutral reference point, rather than the alternative of national guarantees or national perspectives which may be influenced by bias.

Critics have observed that the ECtHR’s global influence can carry on without the UK, but this is not entirely true. There is a danger that were the UK to leave the system, it would be considerably weakened as a result. It has been reported that Azerbaijan’s President Ilham Aliyev is awaiting the details of the British Bill of Rights with interest, as no doubt is Russia’s President Vladimir Putin. The UK would also find it difficult to persuade other States to abide by international human rights norms were it not willing to do so itself.

But the greatest sacrifice for the UK would be losing its ability to shape the global human rights standards formulated by the ECtHR. Over the past ten years there have been numerous examples of UK courts, and UK lawyers arguing before the ECtHR, shaping the Court’s jurisprudence. For example, under the HRA the House of Lords decided in 2005 that it was compatible with Article 3 of the ECHR to return the claimant, who was HIV positive with an AIDS defining illness, to Uganda. It held that the question which must be asked in such claims is whether the present state of the claimant’s health is such that, on humanitarian grounds, he or she ought not to be expelled. In its judgment in N v UK (2008) the ECtHR adopted the same test, utilising almost the same wording, and has continued to apply this test in a number of subsequent judgments. Further examples of the influence of UK courts include: Austin v UK (2012); McDonald v UK (2014); and Jones v UK (2014).

National importance

By far the most important role of the ECtHR in the UK is its impact at the national level. Here it operates in two distinct ways: first, in a static way as a safety net, protecting people against State acts incompatible with the ECHR; and second, in a dynamic way where a judgment of the Court might prompt improvements to comply with the ECHR or entirely new laws, policies or practices in a particular area.

No government, or legislature, is above the temptation to violate ECHR rights, but the mere existence of the ECtHR can provide a strong disincentive. A recent example is the Investigatory Powers Bill, currently before Parliament. Unusually, the draft Bill was accompanied by a “European Convention on Human Rights Memorandum” prepared by the Home Office which made specific reference to relevant judgments of the ECtHR and a statement that the Bill was in compliance with the minimum safeguards “that the ECtHR has held must exist within the legal framework governing the interception of communications.” If the disincentive doesn’t work, and a breach of the ECHR does occur, the ECtHR can hold the UK accountable, independent from national authorities, and free from the pressures faced by national judges. Again, the numerous successful applications brought by families seeking further information about the deaths of loved ones during The Troubles have forced accountability although not yet led to a more widespread change in law, policy or practice.

A judgment from the ECtHR can also help a Government maintain the status quo in the face of pressure for change. In recent years, many judgments concerning the UK have fallen into this category. One of the most well-known is Animal Defenders International v UK (2013) where the ECtHR concluded that the UK’s current ban on political advertising imposed by section 321(2) of the Communications Act 2003 was compatible with the right to freedom of expression as protected by Article 10 of the ECHR, a significant setback for those who have been campaigning for change for many years.

More dynamically, a judgment from the ECtHR can facilitate a process of change and progress and achieve outcomes that the national political and judicial process has simply been unable to deliver. There are many examples including S and Marper v UK (2008) (DNA database) and Smith and Grady v UK (1999) (ban on homosexuals in the armed forces). Even in the HRA era this type of judgment occurs. In Eweida v UK (2013) the ECtHR found that where someone’s freedom of religion is restricted in the workplace, the possibility of changing job doesn’t mean that there has been no interference with their rights. David Cameron welcomed the ruling, tweeting that he was “delighted that the principle of wearing religious symbols at work has been upheld.” And in its judgment in McDonald v UK (2014) the ECtHR established that a local authority’s decision to reduce a care package for an elderly woman was capable of impacting upon her dignity and therefore was an interference with her private life, as protected by Article 8 of the ECHR.

Conclusion

Whilst the national objective remains to continue to protect human rights through law, whether through the HRA or a British Bill of Rights, the ECtHR remains crucial to realising this objective. Each one of its judgments concerning the UK is reflective of at least one of the values outlined above. If the UK were to leave the ECHR system of protection, and thereby the oversight of the Court a number of very negative consequences will result: those unable to pursue remedies at the national level will have no alternative; UK courts will lose their remarkable and growing influence on the jurisprudence of the Court; our independent safety net and the regular confirmations that government and Parliament are doing a good job with human rights will be squandered; and the Court’s potential as a catalyst for dynamic change lost forever.

Merris Amos is a Reader in Human Rights Law at the Department of Law, Queen Mary University of London