UK Contemplates Exiting ECHR: A Potential Shift in the Human Rights Landscape
In the heart of contemporary discourse surrounding human rights, a consequential decision is looming - one that could reshape the very foundations of rights protection within the United Kingdom.
The question at hand transcends mere policy considerations; it delves into the essence of the nation's commitment to international standards and the safeguarding of individual freedoms. As the UK contemplates the possibility of withdrawing from the European Convention on Human Rights (ECHR), a critical juncture is met.
To comprehend the gravity of the situation, it is essential to embark on a nuanced exploration of the background of the issue at hand, the implications for the future of human rights, and the broader global ramifications that may unfold as the nation grapples with this pivotal decision.
Background
The current discourse, fueled by UK Home Secretary Suella Braverman's concerns about the perceived politicisation of the European Court of Human Rights (ECtHR), sheds light on a complex web of legal and political considerations.
UK Home Secretary, Suella Braverman has reiterated her desire to leave what she calls the ‘politicised’ European Court of Human Rights. Braverman and a few other ‘conservative’ politicians see it as a threat to the UK government’s sovereignty particularly in regard to immigration policy.
For instance, the ECtHR's use of Rule 39 injunctions halted the government's controversial policy of sending asylum seekers to Rwanda, and the UK Court of Appeal referenced the ECHR in its June decision to rule against the government in a case involving the Rwanda policy.
Mark Guthrie, a human rights attorney and consultant at Red Lion Chambers in London, explains, "In ruling that the Rwanda policy was unlawful, the [UK] Court of Appeal found that sending any asylum seeker to Rwanda would constitute a breach of Article 3 of the [ECHR], which prohibits torture, inhuman or degrading treatment or punishment." The UK Supreme Court will now hear the matter.
‘If we are thwarted by the courts, or indeed by Strasbourg [home of the ECtHR], then we will have to do WHATEVER IT TAKES, ultimately, to ensure we can stop the boats’, Braverman said in late August.
The UK has recent experience of leaving an international organisation with no settled idea about what would happen next. What would it mean for Human Rights in the country?
Future of Human Rights
In considering the prospect of the UK's withdrawal from the ECHR, the question of what would come next remains a topic of uncertainty.
One proposed course of action involves the establishment of a national human rights code through parliamentary legislation, mirroring the rights outlined in the ECHR. However, this alteration would mean that enforcement shifts exclusively to domestic courts, a change that might not substantially impact the existing framework.
Yet, this represents just one proposition among many. The ultimate decision rests with Parliament, where the government's stance suggests a desire to curtail certain rights deemed to have been extended too far by the ECHR. Notably, previous initiatives, such as Dominic Raab's Bill of Rights Bill, hinted at intentions to limit specific rights, particularly in deportation and overseas military operation cases.
While some argue against the need for a statutory code, asserting that the common law can adequately protect fundamental rights, this view is challenged by historical instances where the common law fell short specifically on the issues re preventing corporal punishment, or discrimination against gay people.
If the UK were to leave the ECHR, the responsibility for determining the development and protection of rights would fall on Parliament, subject to potential shifts in stance over time. Although that would be democracy and parliamentary sovereignty in action, however, this introduces an element of uncertainty, raising concerns about the impact on minorities, especially those at odds with the current government's policies.
Wider Implications
In contemplating the potential withdrawal from the ECHR, it becomes evident that such a move extends beyond national borders, carrying implications that resonate internationally.
The requirement of Council of Europe membership being contingent upon ECHR participation underscores the interconnectedness of these institutions. A UK departing the ECHR would inevitably necessitate leaving the Council, aligning itself with Belarus and Russia as the only European states outside this alliance. This association, or lack thereof, holds profound significance. As Guthrie notes, these two nations are not democracies and do not uphold the rule of law. Should the UK join their ranks, it would lose all moral authority to promote and protect human rights globally. It would symbolise a shift in the UK's commitment to upholding and advancing human rights on a global scale. The influence we currently wield in the development of the ECHR and its case-law would be relinquished, weakening our voice precisely at a time when individual rights face mounting threats worldwide.
Moreover, the repercussions of this decision would reach into the realms of business and investment. A stable human rights framework, inherently linked to property rights and social standards, is crucial for businesses and investors alike. The uncertainty following a departure from the ECHR raises pertinent questions about how such a move might impact these critical aspects.
Conclusion
In essence, the decision to leave the ECHR is not just a legal manoeuvre; it is a statement about the UK's stance on human rights globally. The impact on international perceptions, businesses, the potential for collaborative improvements within the existing framework, and the forfeiture of moral authority should be central considerations in shaping the path forward. As the nation stands at this crossroads, the choices made will undoubtedly shape the future of our approach to human rights.
By Riya Parkash
