Whatever else the UK’s leaving the European Convention on Human Rights (ECHR) might accomplish, it would do virtually nothing on its own to reduce immigration and asylum. But it would perhaps facilitate deportations when combined with other measures, some draconian and themselves arguably (and they will be passionately argued) in breach of human rights.
Leaving the EHCR and its European court, the Strasbourg Court, is now Conservative Party policy as well as that of Nigel Farage and his stooge party, Reform UK. Prime Minister Sir Keir Starmer has said that the government is examining the way the courts interpret Articles 3&8 of the ECHR, dealing with torture & inhuman treatment, and privacy, respectively, though he has said the government will not leave the Convention, which has been written into UK law since the Human Rights Act (HRA) 1998.
Farage announced in a speech in Oxford in August that the UK would leave the ECHR if his party were in power. Reform sees the Convention as a barrier to its planned mass deportation of people who have entered Britain illegally and remain in the country at the expense of taxpayers. Reform UK wants to deport 600,000 people over five years but has given hardly any details how this would be achieved apart from through negotiating returns agreements with other countries. Good luck with that.
The Tory plan
The Conservatives, in a probably vain attempt to pander to Reform supporters, announced at their annual conference in early October, that they too would depart the ECHR and deport 750,000 people. But their leader Kemi Badenoch at least recognised that quitting the Convention would not be an immigration silver bullet and set out a plan of other measures. The Tories would:
- Rebrand the Home Office’s immigration enforcement unit as a “Removals Force” with new powers, and double its budget by an extra £820mn per year, which they say could be unlocked by closing asylum hotels
- Mandate the new Force to remove 150,000 people a year for five years, including people currently living in the UK illegally, future illegal arrivals and all foreign nationals convicted of an offence more serious than minor parking or speeding offences
- Ban people who enter the UK without permission from ever claiming asylum
- Negotiate returns agreements with other nations, and threaten to withhold aid spending and visas from countries that decline to co-operate
- Instruct police forces to check the details of everyone they arrest against biometric borders data and allow the use of facial recognition without informing the public it is in use. This is likely to be fiercely contested under the Data Protection Act 2018 as well as the HRA, and is contrary to guidance from both the Information Commissioner’s Office and the College of Policing
- Expand an unspecified “existing facility” to detain migrants before they are removed, with a capacity for between 1,000 and 2,000 people
- Restrict the grounds for claiming asylum to those facing a threat from the government in their home country, excluding claims from those fleeing conflict or “less tolerant” laws on religion or sexuality
- Abolish the Immigration Tribunal, which hears challenges to failed asylum claims, handing the appeals process instead to a team of officials within the Home Office
- Abolish taxpayer-funded legal aid in immigration cases, with a document on the proposals arguing there “will be no need for lawyers” because claims would be “fairly assessed against the criteria”
At least this is a plan. But as a layman, I can only imagine with alarm the flood of human rights abuse claims likely to flood our courts if these measures were implemented – and not just from asylum seekers. Will British citizens not be among those challenging the new powers for the Removals Force? And what about allowing the use of facial recognition without informing the public?
The threat to the Human Rights Act
Indeed, it is mainly rights other than those directly connected (if at all) with immigration and asylum that would be at risk if the UK left the ECHR. This is plain to see in a piece referring to “the threat to the HRA”. written by Professor Conor Gearty KC of the London School of Economics before his recent death and newly published in the London Review of Books. In arguing that rights are already being eroded by the UK Supreme Court, he cites cases not related to immigration, but to trans people, the rehabilitation of offenders, the two-child benefit cap, compensation for victims of miscarriages of justice, and the release of information about end-of-life decisions related to young children (including a Newcastle Hospitals case), “The Supreme Court is quietly editing the HRA out of existence,” writes Gearty.
And think about the foreign policy repercussions. How and with which nations would the government negotiate returns agreements? What would be the effect on our global reputation if we started using Trumpian bully tactics by withdrawing spending and visas from countries that refuse to co-operate?
Starmer’s announcement of a well-intentioned attempt to find a compromise by reviewing the way Sections 3&8 of the ECHR are interpreted by the courts faces equally high hurdles. Starmer must mean amending the Convention as written into the HRA, which it is within the power of the UK Parliament to do. Re-writing the identical document for the Strasbourg court, however, would require the agreement of all 45 other signatory nations, a virtually impossible task.
Any such attempted negotiation would focus on withdrawing the UK from the right of individual petition to Strasbourg and from Article 46 of the Convention, which requires compliance with judgements of the court, suggest two eminent supporters of leaving the ECHR, the KCs Professor Richard Ekins of Oxford University and Sir Stephen Laws, in a recent report for the right-leaning think tank Policy Exchange.
If negotiations did fail, leaving the Convention as applied by Strasbourg as it is but the version used in UK law amended to make deportations easier, it seems inevitable that there would be a flood of new appeals to the Strasbourg court by those who have been turned down in the UK.
The number of successful appeals to Strasbourg could easily rise from negligible to significant – exactly the outcome that politicians of all parties want to avoid and increasing the pressure to leave the ECHR altogether. Alternatively, appellants might pursue their cases through other UK laws, including their common law rights, as Ekins and Laws also point out.
What the ECHR says
It is worth at this point reminding ourselves exactly what the two relevant Sections of the ECHR say. Section 3 states:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
This right is non-derogable – it cannot be limited or suspended even in times of war or emergency. The Strasbourg court has interpreted inhuman treatment as causing intense physical or mental suffering, and degrading treatment or punishment as debasing the individual, showing lack of respect for human dignity.
Section 8 says:
“Everyone has the right to respect for his private and family life, his home and his correspondence.
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” This is a wide range of exceptions and one can certainly imagine why the UK government would want to ensure the courts take greater account of them, using them to reject more applications.
So, if the Tory plan would fail because it would have a negligible effect on immigration and asylum numbers while leading to more human rights abuses in other fields such as secret public surveillance; Labour’s because it would tend to shift the balance of final asylum decisions back to Strasbourg; and Reform’s because it has no plan, what can be done?
Ekins and Laws do set out a coherent case for the UK leaving the ECHR. Argued out in their 80-page report, in essence it is the quite commonplace one that in a democracy like the UK it is the elected parliament, not courts, wherever they may be, that should decide within the bounds of humanity what rights people have (No responsible person is suggesting that immigrants and asylum seekers should be exposed to execution, torture on inhuman treatment by being deported to a country under a murderous regime – at least, one hopes not, though one fears Farage might not care).
Farage is mistaken if he believes the British people are with him on this. Opinion polls by YouGov since 2013 and analysed by The Independent show that more people consistently favour remaining in the Convention than leaving. The most recent poll this month (October) found 46% opposed to leaving and 29% in favour.
The case for leaving the ECHR
Human rights law (whether British or European), believe Ekins and Laws, is not the same as human rights, which should be compatible with our laws in any case: “The HRA and the ECHR, taken together, upend the traditional balance of the Westminster constitution, compromising both effective government and parliamentary democracy, as well as creating unacceptable risks for the reputation of the judiciary for political impartiality,” they write. They see the ECHR as interpreted by the Strasbourg court as a moving target constantly inhibiting the ability of governments to legislate in all sorts of fields which should be matters for them alone, subject to parliamentary approval.
They agree with Gearty at least to the extent that all believe withdrawal from the ECHR would have wider implications than in the field of asylum and immigration: “Unhappiness about European human rights law may seem largely focused on immigration, asylum and deportation; but the reason for this is that those topics are, at present, the most politically salient examples of where the law and practical politics collide and diverge,” they write. “There can be little doubt that, if other topics developed greater political salience (say, climate change or welfare reform), judicial intervention in practical policymaking and administrative decision-making on those topics would attract similar unhappiness (as was seen, in the not so recent past, in relation to lawfare against UK forces).”
Pandora’s Box
So, all the options for leaving the ECHR have serious drawbacks:
- Leaving the Strasbourg court and repealing the HRA would open a Pandora’s Box of claims of abuse in a wide range of areas
- Leaving the ECHR but keeping the HRA unamended would result in a negligible reduction in successful asylum claims, as the number of cases rejected in the UK that go on to be successful in Strasbourg is already very small
- Leaving the ECHR and amending the HRA would certainly make it more difficult for successful asylum claims to be made on grounds of human rights law; but applicants would doubtless seek other legal avenues, such as common law rights
- Remaining in the ECHR but amending the HRA to make successful claims more difficult (the Starmer plan) would likely encourage more applicants unsuccessful in the UK courts to appeal to Strasbourg – just the outcome no political party wants – unless a way could be found to prevent them.
While leaving the ECHR as applied by Strasbourg would on its own have a negligible effect on the numbers, it would be a highly significant symbol of sovereignty, satisfying the instincts of some voters by whom it would be seen as “doing something” – but nothing effective, as we have seen. Anyway, it’s not what most people want, as we have also seen.
Conclusion
There’s no reason in principle why a liberal democratic country like the UK should not have its own human rights laws determined by its own parliament, but the benefits of leaving the ECHR would be so slight and uncertain in terms of immigration and asylum and the potential disadvantages significant enough in terms of counter-productivity and damage to our international reputation that leaving the Convention as advocated by the Tories and Reform UK would be unwise as well as inhumane and unethical in the eyes of many.
Ultimately this is a question of trust and empathy. Who do voters trust – or rather, who should they be able to trust – to strike a fair balance between the human rights of asylum seekers and immigrants and the legitimate interests and concerns of the British people: Parliament, ministers (effectively Home Office civil servants acting at the behest of ministers in accordance with UK law), UK courts and tribunals, or the ECHR as implemented by the Strasbourg court? And do these voters have sufficient regard for the rights of asylum seekers to care? The polling evidence suggests they do.
This is good news as far as it goes. But given that it is possible the UK will have a Reform government by 2029, and if Gearty is correct that the HRA is already being eroded, it would be reckless to cast aside the backstop of the ECHR and the Strasbourg Court.
So if leaving the ECHR would make little sense or difference but open a Pandora’s Box, then – as I wrote in North East Bylines on 7 September – the government’s painstaking, methodical and time-consuming approach of speeding up the handling of asylum claims, deporting unsuccessful claimants, tightening visa restrictions and working with our European neighbours to disrupt the people traffickers (smash the gangs) holds out the best hope devised so far of gradually reducing the numbers.Of course, if the UK had not left the EU with Brexit it would still be a member of the Dublin Convention, which enables the return of asylum seekers to their country of first entry into the EU for their applications to be processed there. But that’s another story.
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