This piece was written as coursework for the International Human Rights Law course, for which I was awarded an "Outstanding A", making me on track for a Pass with Distinction in my candidacy for an LLM in Human Rights Law from Queen's University Belfast. Enjoy Reading!
According to recent reports, the UK is planning to withdraw from the European Convention on Human Rights (ECHR), evident by the UK government's refusal to formally state their adherence within Brexit negotiations, and update the Human Rights Act 1998 (HRA) as outlined in the Conservative party’s manifesto.
This is a contentious move for three primary reasons: it dampens protections set in place to promote the universality of human rights law; it removes safeguards placed upon the UK government’s central power due to parliamentary sovereignty; it will damage the UK’s reputation as a human rights guarantor among states.
Ratified member states of the ECHR are legally bound through international law to adhere to the rights outlined in the treaty, applying to everyone in their jurisdiction, citizens and non-citizens alike. The ECHR is only binding at international level, not domestic. The aim of the HRA 1998 was to incorporate the ECHR into UK domestic law, meaning that victims can bring complaints to UK courts rather than having to apply to European courts. Since the ECHR is legally binding upon the UK through its obligations as a ratified signatory, the introduction of the HRA just changed where a person could appeal. Now victims can bring a human rights abuse case to UK courts and get the decision from a UK judge, but it is still within the power of the Council of Europe to have the final say and overturn the UK’s decision. This is one of the quoted reasons for the UK wanting to leave the ECHR, to gain sovereignty.
But what is the price of sovereignty?
As the UK is a ratified signatory to the ECHR, this means that all UK law must be compatible with the ECHR, as outlined in the HRA Section 2 and Section 3. This, arguably, is what undermines parliamentary sovereignty. Opting out gives UK courts back autonomy on decision-making, but also gives the UK the ability to rewrite the HRA.
The main issue here is how it is re-written. Reports state the UK wants to update the HRA to only apply to citizens, meaning that migrants, asylum seekers and refugees (non-citizens) wouldn't be able to use it to claim human rights abuses. Concurrently, a rise of discrimination against migrants in the UK, both through governmental policies and public sentiment through Brexit, has increased the number of restrictive policies coupled with the overarching need for the UK to remove itself from international obligations. This rise of nationalism could mean that if the UK government were to reform the HRA to exclude non-citizens, there may not be significant civil disagreement as public sentiments become more right-wing. This is alarming as civil society is one way in which governments are held accountable ie. through mass protests, demonstrations and voting in democratic societies. The removal of civil willingness to rebel as well as the removal of the ECHR’s ability to hold the UK legally responsible could revoke protection of non-citizen rights.
So what would the UK’s withdrawal from the ECHR mean for non-citizens?
If the UK opts out of the ECHR this removes the UK’s legal obligation to protect and provide for non-citizens within their jurisdiction, making it easier to deport non-citizens as well as removing the obligation to treat non-citizens humanly (Article 3, ECHR) and not incarcerate non-citizens arbitrarily (Article 5, ECHR).
The UK government is pursuing “draconian clampdown” on rights for non-citizens, planning to redefine “inhuman and degrading treatment” as a part of updating Article 3, so that non-citizens wouldn't be able to use it to avoid deportation to dangerous places. International Refugee Law, specifically the 1951 Refugee Convention, can offer protection by legally obliging the UK to not return refugees to countries where they face persecution, yet victims must prove the risk and reason for persecution to be protected under this convention, which can be very difficult. In contrast, Article 3 of the ECHR protects citizens and non-citizens from torture, and inhuman or degrading treatment. The UK state is obliged to adhere to Article 3 meaning it must take necessary action not only to not commit inhumane treatment, but to ensure that non-citizens don’t experience it. For example, returning non-citizens to countries that would commit inhumane treatment would result in a breach. Therefore, the 1951 Refugee Convention wouldn't necessarily protect non-citizens from being sent to a country where they may be tortured or treated inhumanely, but Article 3 does since it is an absolute right, so there can be no exceptions to ensuring it.
The removal of Article 5, the right to liberty and security, could mean that non-citizens could be held arbitrarily in detention centres for extended periods, and without the protection of Article 3, could be subject to inhumane and degrading treatment while in custody. Removal of Article 6, the right to a fair trial, as suggested by Home Secretary Priti Patel, would curb the right of non-citizens to fight deportation decisions. Removal or “updating” of any of these rights would breach the ECHR, and to an extent the 1951 UN Refugee Convention too. Further restricting legal mechanisms to achieve asylum in the UK only puts non-citizens in more dangerous situations.
So why shouldn’t the UK leave the ECHR?
Simply because it removes the obligation to protect the rights of non-citizens in the UK. Ironically, the UK was one of the creators of the ECHR, implying that the articles are culturally aligned. Additionally, there is a wide margin of appreciation that comes with the implementation of the ECHR domestically, giving states significant freedom of political interpretation.
Having human rights legislation legally binding with a higher court of appeal gives all human beings protections, whether citizens or not. This is crucial to respect human dignity. As stated by Liberty, a UK human rights organisation, it’s inappropriate for a state to pick and choose which rights to respect, and who gets to have those rights protected.