Fifty Ways to Leave the European Convention on Human Rights

Sometimes one gets the strong sensation that one has entered the world of Jean Baudrillard, wherein reality has “died out”. A feature of this strange environment is that politicians no longer simply lie. Lying requires a belief that there are underlying facts and hence that statements can be true or false – it is in this sense, at least, a humane act. But political statements have become misleading in a deeper way, by being so frivolous with respect to matters of truth and falsehood that they almost actively create conditions of alienation and fantasy – bolstering the feeling amongst the population that they inhabit not so much a shared polity as a fragmented dreamscape.

This feeling has been driven home to me recently by Rishi Sunak’s recent vague hints about leaving the European Convention on Human Rights (ECHR) – whether because the U.K.’s status as a signatory to the Convention is preventing the resolution of the illegal immigration crisis, or because of what the recent ‘protection from climate change‘ rulings handed down by the European Court of Human Rights (ECtHR) signify about its future conduct.

Sunak cannot be serious about this. (Picture me saying this in a John McEnroe accent.) He must know perfectly well that ‘leaving’ the ECHR is, at least for his Government, impossible. And he also must know that extricating the U.K. from the Council of Europe (the umbrella organisation for the ECHR) and unpicking the deep intertwining of U.K. and ECHR law that has happened since the 1990s would be the work of years of committed work, strategically planned and executed, in the face of tooth-and-nail opposition from almost every organ of the state. It would be Thatcher against the unions, but on steroids. And it would require, as a result, total commitment from a Government with a large electoral mandate, a unified party, and a heck of a lot of nous, not to mention a credible plan. So why even pretend that it is currently possible? It is not a lie, to repeat; it is something that is worse – an elevation of fantasy to a position superseding reality, in which reality is indeed sacrificed to bolster a mere narrative (Sunak versus the ‘deep state’) which is entirely fake.

Let me briefly explain, then, why it is that talk of ‘leaving’ the ECHR is at this point in time not a credible suggestion.

First, although 2017 is some time ago now, and while it is to some degree forgivable to wish to forget the interminable stuff-and-nonsense of the Brexit years, it is most certainly not forgivable to wish away legal and political realities. In the case of Miller v Secretary of State for Exiting the European Union [2017] UKSC 5, you may recall, the Supreme Court ruled that, since leaving the European Union would take away certain of the rights of U.K. citizens that derived from their additional status as EU citizens, the Government could not simply of its own accord ‘leave’ the EU treaties and stop being a member. Although technically the treaty-making (and hence treaty-leaving) power is a prerogative one which the Government exercises, a Government is not allowed to deprive the citizenry of its rights that way without being given permission to do so by Parliament. In short, there needs to be legislation enacted to allow the treaty-making prerogative power to be used in such a way as to affect the rights of U.K. citizens.

We can argue over the merits and flaws of the decision in ‘Miller One’, as it has become known, until we are blue in the face – but the fact remains that it is now part of our constitutional arrangements. It would therefore not be lawful for the Government to simply ‘leave’ the ECHR without legislation permitting it to. Given the current composition of the House of Commons this seems unlikely to say the least. Given that it would not consist of the implementation of a manifesto commitment, and that the House of Lords would therefore be within its constitutional rights to throw every hurdle in its arsenal in the way of such legislation, it seems impossible that this could be done before the next General Election (even leaving aside the inevitable spanner-in-works-throwing that would follow on the part of every Jolyon Maugham and Gina Miller in the land, not to mention their dogs). Fuggedaboudit.

Second, while English people sometimes have a habit of blithely forgetting this, Northern Ireland is part of the U.K., Northern Irish people are U.K. citizens, and Northern Irish people care about living in peace. Since a commitment to the ECHR was given by the U.K. Government at the time of the Good Friday Agreement, which brought peace to the province after the Troubles, and since it is written into that agreement that the rights contained in the ECHR will be incorporated into law in Northern Ireland (this being a major bone of contention for republicans at the time), we cannot leave the ECHR without tearing up that agreement and replacing it with something else which will garner consensus. That this can be achieved at all, let alone being achieved without great difficulty, is – let’s be charitable – not at the current moment very likely.

Third, Dominic Raab, an intelligent and sensible Minister with legal expertise, gave a decent shot at achieving a compromise position regarding human rights law in the U.K., wherein we would remain in the ECHR, but the way in which it would be applied in U.K. courts would be restricted to some degree and made more democratically palatable. This was an important project – not perfect, but a worthy attempt to chart a reasonable middle course between two irreconcilable positions (those who think that the only problem with the Human Rights Act (HRA) is that it does not go far enough, and those who think human rights law itself should be abolished on the grounds that it is a Trojan horse for “Lefty lawyers” to exert influence).

But Raab was resisted at every turn by the human rights lobby and by legal academia, and in the end he simply could not get buy-in from his civil servants; they indeed in the end connived (whether deliberately or not is difficult to ascertain) to get rid of him. And the person who oversaw his defenestration, rather than supporting him, or indeed even appointing a successor to finish the job, was our very own Rishi Sunak. The very same Rishi Sunak who now suggests his Government might have the wherewithal and gumption to decide to leave the ECHR entirely. You can probably join the dots there for yourself, and I am keen not to say anything too inflammatory; you get the drift.

Fourth, as a jurisprudential matter, leaving the ECHR is by no means the end – or even the proper beginning – of the story. This is because U.K. judges have not merely been loyally applying the provisions of the ECHR since the HRA was enacted in 1998. They have (rightly or wrongly) been engaged in a thoroughgoing project to embed and entrench a distinctive body of U.K. human rights jurisprudence into our constitutional arrangements for almost 30 years. There is even name word for this project: common law constitutionalism, or common law constitutional rights.

The body of precedent that has emerged is truly vast. Entire tomes have been written about each and every single right in the ECHR and how U.K. courts have interpreted them and given them effect. And that is not even to mention the fact that our ongoing presence within the Council of Europe framework has resulted in all manner of foreign concepts (the doctrine of ‘proportionality’ review being the most important) entering our legal system and becoming part of its furniture. Leaving to one side the merits of the concept in theory, then, the notion that the U.K. could simply ‘leave’ the ECHR and human rights law and its practical consequences would thereby go away is, I am afraid to say, therefore a fantasy.

I said that Sunak knows all this. And you should have no doubt about that. He knows all this because – as we have seen – he worked with Dominic Raab, and Dominic Raab clearly knew it. Moreover, the Tory Government elected in 2019 also clearly knew much the same set of things. This was why, as you may recall – although it was long ago and far away, now – people who were close to that Government, and who were clearly advising it, were talking in its early period about an entire package of reforms with respect to the judiciary, including limiting its powers of judicial review, changing the name of the Supreme Court to the Upper Court of Appeal and even forcing it to move north to Lancaster (the latter of these being an idea I actually had a lot of fondness for as a cosmetic but significant sop to the north of England). All of that was being done because the people advising the Government at that time knew perfectly well that squaring the circle of what we could call loosely the ‘judiciary and democracy problem’ was going to be a big and difficult task and needed to be thought through (irrespective of whether their ideas were good or not).

The lockdown era then began and all of that bold talk was conveniently abandoned. But to act as though the basic calculation has changed – and to pretend that ‘we might leave the ECHR’ in the near or even medium-term future – is simply not the behaviour of a politician with serious designs on formulating an honest relationship with the electorate. Whether leaving the ECHR is a good idea or not, making it happen would be serious business. We are in deep and profound trouble if we cannot even begin to describe the issues which confront us in clear and accurate terms – let alone to remedy them. But Rishi Sunak does not appear to even recognise doing so to be important. We are, then, I think it is safe to say, in deep and profound trouble indeed. And as a result it is becoming difficult not to agree with the public at large that Tory Government is not – at least in its current iteration – the means to seriously respond to our predicament.

Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.