Why doesn't the UK want to be part of the European Convention on Human Rights?

Question

As per recent news coming from the negotiation for a deal between the UK and the EU, Michel Barnier said:

Yet the UK informs us that they do not wish to commit formally to continuing to apply the European convention on human rights, nor do they wish the European court of justice to play its full role in interpreting European law.

—Michel Barnier, as quoted by The Guardian

Personally, I don't understand what the consequences of the the UK pulling from the European Convention on Human Rights (ECHR) are.

What are the consequences?

What could the UK do if it wasn't signed into the ECHR?

Answer 1

Despite the ECHR not being an EU institution, the optics of a European court having jurisdiction over the UK should not be underestimated. This YouGov poll from 2014, shows that the British public favoured withdrawal from the ECHR - the full data shows that the convention is especially unpopular with Conservative and UKIP voters - and this is before the Brexit debate entered the ring.

The approach described by Barnier is consistent with the current policy of the UK Government in their negotiating position outlined in the document The Future Relationship with the EU published in February. Within this, under "Part 2 - Other Agreements", point 31 states:

Cooperation will be underpinned by the importance attached by the UK and the EU to safeguarding human rights, the rule of law and high standards of data protection. The agreement should not specify how the UK or the EU Member States should protect and enforce human rights and the rule of law within their own autonomous legal systems.

This reinforces the UK Government's position that the EU should respect the UK's independence and autonomy in all matters, including on the subject of human rights - and vice versa. Indeed, the Government reiterated this at the beginning of February:

A Downing Street source said: "We are fully independent and our approach to a free trade deal will not be bound by our previous obligations.

"Nor will we agree to obligations which the EU has not required of other countries which it has signed comparable free trade deals with."

This is a reference to the existing Canada-EU & proposed Australia-EU free trade deals, among others. Obviously neither Canada nor Australia sign up to the ECHR, due to not being members of the Council of Europe, and therefore the UK doesn't agree that a free trade deal should be contingent on this.

Addressing business leaders and diplomats in London, Mr Johnson will reportedly call for the UK to be treated as an "equal" in the talks and demand "no alignment, no jurisdiction of the European courts, and no concessions" with Brussels.

This point is key to understanding the Government's negotiating position. The Conservatives have just won their largest election victory since 1987, partially on the back of their whole-hearted opposal to the jurisdiction of European courts over the UK. To avoid being accused of a "Brexit in name only" negotiating position, and the possible resurgence of the Brexit party, it is important to be seen to be resolute and uncompromising on this point.

As to what the decision will allow the UK to pursue, the previous Prime Minister, Theresa May, had been a key proponent of a "British Bill of Rights" since she served as Home Secretary in the Cameron administration. After becoming Prime Minister in the wake of the EU referendum, it was widely reported that a side-goal to Brexit was to remove the UK from the ECHR for the proposed British Bill of Rights to be implemented and to have teeth.

As the ECHR enforces minimum standards on members, the only practical reason to repeal it is to reduce these minimum standards. In particular, the Government recently lost a case regarding the police retention of DNA.

Current Cabinet members also have misgivings about the ECHR. Priti Patel (Home Secretary) & Dominic Raab (Foreign Secretary) have both warned that "the ECHR has been repeatedly "abused" by European judges". Outlining his opposal to the ECHR, Dominic Cummings, the Prime Minister's Chief Advisor wrote on his blog in 2018 that "The ECHR creates [...] legal problems all the time", going on to say:

If I get involved in politics again, then a referendum on the ECHR should be high on the agenda — and bear in mind most people probably think we’re already leaving it because of the 2016 referendum, so imagine how mad they’ll be when they realise we’re still in it.

It seems now that Cummings will get his wish without a referendum.

In conclusion, then, the motivation is a mixture of electoral and practical reasons. The Government wants to be seen to be robust in their negotiating approach, and their stance against the jurisdiction of international bodies - especially European courts - over the UK, to please voters, while also allowing the Government to implement stricter laws on certain areas that it cannot currently due to protections enforced by the convention.

Answer 2

The UK can't leave the jurisdiction of the European Court of Human Rights without withdrawing from the convention. Whilst not an EU institution, it's a popular target for the largely right-leaning tabloid press. So the minimal change is we would adhere to the principles, and retain the Human Rights Act to allow UK courts to rule upon them.

Then there is the more radical option of abolishing the Human Rights Act altogether, and then not having any judicial oversight on laws or their implementation. Although, neither the ECHR or the UK courts can actually set aside legislation on human rights grounds in any case. Their power is limited to noting the problem, and awarding compensation.

Whilst there no immediate danger of the UK bringing back slavery (article 4), if we think of a few cases HMG have recently lost (DNA retention by police, wiretapping, votes for prisoners), you can imagine the likely consequences of doing so.

DNA retention: https://en.wikipedia.org/wiki/S_and_Marper_v_United_Kingdom

Wiretapping: https://en.wikipedia.org/wiki/Malone_v_United_Kingdom

Votes for prisoners: https://en.wikipedia.org/wiki/Hirst_v_United_Kingdom_(No_2)

Answer 3

In a nutshell, the UK [Conservative public] wants to exit from the ECHR for the same "take back control of our laws" reason that has been a substantial motivator for Brexit. Some are probably surprised that the UK is still party to the ECHR despite Brexit, because ECHR is a CoE institution, which the UK joined two decades before joining the EU. Nonetheless the ECHR is perceived by the UK Conservatives to be "part and parcel" of the same sovereignty problem:

the jurisdiction of the European Court of Human Rights and of the European Court of Justice are perceived by the Conservative Party as an intolerable encroachment upon the sovereignty of the British state, all the more so as the ECtHR has ruled that UK law was in breach of the Convention on several occasions (such as the right to vote for prisoners and the extradition of foreign nationals suspected of terrorism). Even in the months leading up to the EU referendum of 2016, much of the Conservative party's hostility was directed towards the ECHR, rather than the EU. Thus, in April 2016, Theresa May, then Home Secretary in David Cameron's government, made the following statement: "The ECHR can bind the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals [...]".

So there you have a simple Brexit-type slogan why the ECHR is bad for the UK, in the Conservative perspective. After the "EU exit" the "ECHR exit" would be a "natural corollary" in this [Conservative] perspective. Or to use an expression sometimes employed by Donald Trump: "we should have done this a long time ago." As an obscure factoid here, in some old speeches Theresa May actually advocated for leaving the ECHR but staying in the EU. So it's fair to say that for some Conservatives the ECHR membership looks like an even worse deal (for the UK) than the EU membership [was].

The recent data case defeat at ECHR has given a more concrete reason for the Johnson government to prioritize this "ECHR exit" as well.

It suffices to read the pages of the Express to get how the ECHR is perceived in the part of the UK public that matters today to the present UK government:

One voter said: “They must be joking? Would they be happy if a British court overruled their decisions?”

An irate voter commented: “Who with even half a brain would say they would want the EU having anything more to do with our lives?”

Another added: “I thought that was one of the primary things we voted for?”

Many voters called for Mr Johnson to “cut all ties” with the EU.

Yes they are talking about the ECHR here. Note how not one comment highlighed made any distinction between CoE and the EU. It's all the same to them.

Answer 4

There are two kinds of cases which the government has lost repeatedly over the past 20 years and wishes to reverse or win in future: immigration and torture.

The Article 8 right to family life is interpreted as meaning that people have a right to live in the same country as their family, especially spouses and children. The government disagrees - there is no automatic right for a British person to marry a foreigner and live with them. It has also changed the rules so children born in Britain are no longer automatically British unless at least one parent has full British nationality.

There have been various minor rulings that the immigration process must be fair and accurate, which the government regards as unduly burdensome.

Similarly the Iraq and Afghanistan wars produced a number of people claiming that they or their relatives had been murdered or tortured by British troops, and that this was a human rights violation. The government disagrees.

Answer 5

This is perhaps more of a legal than a political question. I am not a lawyer. The answer below is based on my lay understanding/interpretation of articles and rulings.

What could the UK do if it wasn't signed into the ECHR?

Departing the European Convention on Human Rights and thus the Council of Europe, which I haven't heard being proposed before, would mean the UK could no longer be stopped by any external court to any of the following things. Many of those appear far-fetched but some have been tested in court:

• The UK could introduce the death penalty (Article 2 prohibits this). I'm not aware of mainstream politicians proposing this. Public support appears to be around 50%.
• The UK could torture suspects, or not bring suspected torture to court (Article 3 prohibits torture — no exceptions). In 2018, the the ECHR rejected a case to define the British army treatment of 14 men detained without trial as torture, thereby confirming an earlier 1978 ruling. In 2011, it confirmed human rights apply to Iraqi detainees when held by UK soldiers, even if those soldiers operate in a country not signed up to ECHR.
• It could reintroduce slavery (Article 4 prohibits this). This seems unlikely. I could not find any case involving the UK, but there was a 1963 case involving Norway with the ECHR rejecting the claim that requiring a dentist to serve in a rural village for a year before working elsewhere amounts to slavery.
• It could abolish habeas corpus (Prohibited by Article 5, which protects liberty of person). There has been at least one case testing when someone can be admitted into a psychiatric hospital.
• The UK could limit peoples access to a fair trial (Article 6 guarantees a fair trial). In 2000, the ECHR ruled that it was unlawful for the UK to imprison two Irish citizens for remaining silent on IRA involvement.
• Applying criminal law retroactively is prohibited by Article 7.
• The UK could introduce limits people right to privacy or a family life (Article 8). In 2010, the ECHR found that UK Stop & Search powers went too far. In 1999, the ECHR ruled that the Armed Forces could not discharge personnel on the basis that they were gay (family life). In 2018, it ruled some aspects of UK surveillance to be in violation of Articles 8 and 10.
• It could legally restrict religion. (Article 9)
• It could legally restrict speech/expression (Article 10). In the so-called McLibel case, the ECHR overruled English courts which had ruled a London Greenpeace leaflet about McDonalds to be libel.
• The UK could ban or restrict associations such as trade unions (Article 11). The ECHR ruled that labour unions can choose their own members. In 2014, it found that restricting secondary industrial action does not restrict the right to strike (secondary industrial action is strike action against an organisation other than their employer).
• It could restrict people's right to marry (Article 12). The ECHR has ruled it unlawful to restrict a prisoner's right to marry, among other related rulings.
• It could discriminate based on race or other factors (Article 14)

Among other things.

Since leaving the ECHR implies leaving the Council of Europe, it also means:

• No more UK MPs to the PACE.
• No longer pay €34 million per year in CoE membership fees.

Of course the UK could leave the ECHR just as a matter of principle and still not do any of those things. Some voters might want that UK soldiers can torture suspects without consequences, or that the government expands mass surveillance to Chinese levels; currently the UK does not have the sovereignty to introduce such policies, since it has signed up to human rights enforced by the ECHR.

It's possible that the UK doesn't actually want to leave the ECHR, but just as a matter of principle doesn't want to promise the EU that it will remain in the ECHR as part of a trade deal.

Answer 6

I'll quote from Public Law: Text, Cases, and Materials (2019 4 edn). p 202.

Some sense of how revolutionary the enterprise was considered to be may be gleaned from the UK government’s reaction to it. The United Kingdom was one of the greatest supporters of improving human rights protection and, indeed, was the first state to sign the ECHR. While it approved of human rights in the abstract, however, the government, like most others, was extremely uneasy about accepting enforcement mechanisms that enabled individuals to take their cases to an independent international court. In fact, only three of the original ten signatory states initially signed up to the right of individual petition. The UK government insisted that it would sign up to the Convention only if it could opt out of the procedure (that is, only if the procedure were optional). This was agreed and it was not until 1966 that the government agreed to allow the right of individual petition— and even then it did so only on a temporary basis. Things have now moved on, and the right of individual petition is now a compulsory and very heavily used element of the ECHR.
       The government’s early concerns are explained by Andrew Moravcsik.

p 203.

Answer 7

The UK Government (as opposed to certain individuals within it) do not necessarily want to withdraw from the European Convention of Human Rights however they do not wish their room to manoeuvre in this area to be constrained and they also have ideological objections to letting a group of foreign governments (the EU) mandate UK policy.

Brexit is above all about ensuring that the people who decide British policy are accountable to the British electorate, giving the EU an open ended commitment to staying in the EHCR goes against that principle.

As for why this is even an issue others have articulated well the way basic human rights, as understood at the time of the signing of the convention, have stretched beyond recognition into something that is now seen my many in the Conservative Party as ludicrous e.g. prisoner votes.