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ECHR: What is it and why can’t we leave?

European Court of Human Rights

The ECHR is much in the news currently with regard to the implementation of the government’s Rwanda policy and the recent decision by its Court that the Swiss government has a duty to protect its citizens from the effects of climate change; but, what exactly is the ECHR?

The ECHR was conceived and delivered by the post-WWII Council of Europe and is the initialism for the European Convention on Human Rights, whilst the ECtHR is the initialism for the European Court of Human Rights.  Most of the time the “t” is incorrectly omitted when references are made the the Court as opposed to the Convention with ECHR being regarded as interchangeable.

The first point to make clear is that the ECHR and ECtHR are not organisations established by or under the auspices of the European Union. They are completely separate entities and the European Convention on Human Rights should not be confused with the EU’s Charter of Fundamental Rights.  Nor should the ECtHR be confused with the the EU’s European Court of Justice.

Britain, through the energetic leadership of Winston Churchill, was the driving force  behind the creation of the Council of Europe, which Churchill first referenced during the war in a radio broadcast in 1943. Although there was still a war to fight with no certainty of outcome Churchill’s irrepressible and indomitable brain and spirit were looking ahead, post-victory, to what could be done to rebuild Europe and protect its citizens from a repeat of the horrors of authoritarianism and war.

The ECHR was originally called the Convention for the Protection of Human Rights and Fundamental Freedoms and was designed to codify into a binding treaty the rule of law, democracy and human rights protections and privileges that had been trampled under foot by the Nazi and Stalinist jackboot.

We in Britain had never suffered the dreaded extra-judicial midnight hammering on the door to be dragged out and shot or sent to a concentration camp, and so it was not originally intended that Britain would be a signatory to it. However, as it was a British idea promoted by Winston Churchill (as was the European Union) and Home Secretary David Maxwell-Fyfe (who was a lead prosecutor at the Nuremberg Trials) it was felt necessary that Britain should subscribe.

The Council was duly established by the Treaty of London on 5th May 1949 and now consists of 46 members states comprising approximately 675 million people throughout Europe. The ECtHR was established under the Convention in 1959 and hears complaints of breaches by member states of the Convention brought before the Court by citizens and organisations of those states.

One of the first acts of Tony Blair’s Labour government was the passing of the Human Rights Act 1998, which came into force on October 2000, which incorporates the all the provisions of the ECHR into domestic UK law.

Inevitably where lawyers are involved, over the 65 years since the court was established there has been a seemingly ineluctable process where the court has extended its jurisdiction by regarding the Convention as a “living document” that must, in their view, take account of unforeseen and unforeseeable factors since when first established.

There are many egregious instances where this “mission creep” and over-reach has produced ridiculous outcomes such as the up-to-the-minute case reported on 10th April 2024 where a Afghan serial sex offender was jailed for 12 weeks for “outraging public decency and exposure”, but avoided deportation and was, instead, granted refugee status after his lawyer claimed it would be a breach of his human rights to send him back to his home country as he would be exposed (no pun intended) to “ill treatment” and possibly “mob violence” if he continued with his anti-social behaviour.  So, on his release from prison (presumably after serving half his sentence) he will feel free to carry on flashing as before safe in the knowledge that he can continue to rely on the largesse of  the welfare state and prison service to keep him housed, fed and safe. No wonder there is a clamour for Britain to leave the ECHR.

Can Britain leave the ECHR? Theoretically yes, but practically no. Not only would such a move be almost impossible to get through Parliament (the wet majority in the Cabinet are against as are the Lib Dems, Greens and Labour, but also a majority of Peers), but the “elephant in the room” which few politicians calling for our departure seem willing to acknowledge is Northern Ireland and the Belfast (Good Friday) Agreement (“the Agreement”) which contains a number of express, legally binding, provisions in respect of the Convention.

The ECHR is not simply mentioned en passant in the Agreement, but is integral and fundamental to it. The effect of this incorporation simply means that if the UK (which, of course, includes Northern Ireland) leaves the ECHR it will be in fundamental and serious breach of the Agreement. The government of the Irish Republic as co-signatories of the Agreement would not allow this, and their influential backers and supporters in America and the EU have already promised  punitive action to make life very difficult for the UK should we in any way compromise the Agreement. We are, therefore, stuck between a rock and a hard place.

One suggestion put forward by the few politicians who seem to be aware of the problem is that the UK excluding Northern Ireland could leave the EHCR thus rendering it applicable only to Northern Ireland. So far as I’m aware, there’s no provision in the Agreement that requires the Convention rights to be applicable elsewhere in the UK, but (there’s always a “but”) Article 1 of the Convention states :

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention”

In this context the “High Contracting Parties” includes the UK and, as such, so long as Northern Ireland remains within the UK “everyone within their jurisdiction” must be beneficiaries of the rights and freedoms provided for in the Convention.

In short, for the UK to unilaterally leave the Convention would be in breach of the Agreement; an opt-out for Northern Ireland would also be in breach; and it appears to be completely impractical for the Agreement to be renegotiated with unwilling counter-parties, principally the Irish government, who have no incentive to forfeit their existing Convention rights against the UK.

It would appear, therefore, that so long as Northern Ireland remains part of the United Kingdom the UK is bound to the Agreement and, in turn, bound to the Convention.

It seems to me that in an endeavour to unravel this Gordian Knot (without recourse to the sword) is for those politicians and others demanding that the UK leave the ECHR should convene a conference of all the talents where the subject can be thoroughly analysed and, if possible, a legal solution capable of practical implementation be found. Until such a solution is found demands to leave the ECHR are pointless and serve only to exacerbate the feelings of frustration and impotence that are suffered by all of us who really do “want out”.