Why Dominic Grieve’s departure from the Government might hasten the UK’s withdrawal from the ECHR

Dominic Grieve, who has served as Attorney-General since the 2010 general election, and who was a strong supporter of the UK’s ongoing membership of the European Convention on Human Rights, has left the Government. He is replaced by Jeremy Wright, previously Minister for Prisons and Rehabilitation in the Ministry of Justice. Calling the significance of Grieve’s departure and Wright’s appointment—at least in relation to policy on ECHR membership—is complicated by the fact that Wright has not (as far as  I can tell) said much about the issue so far. (I note, though, that his voting record—according to which he opposed equal marriage—suggests that he may not be in the progressive vanguard of modern Conservatism.)

However, while it is, for now, difficult to know for sure what Wright’s position in relation to the ECHR will be, it seems unlikely that he has been appointed in anticipation of his taking the same position as that occupied by Grieve. The direction of travel within the Conservative Party over recent years has been a hardening of attitude against the Human Rights Act 1998 and, in some quarters at least, against the UK’s ongoing membership of the ECHR. Indeed, the Conservative Party went into the last election promising to repeal the HRA. And at last year’s Conservative Party conference, the Home Secretary, Theresa May, said:

… the next Conservative manifesto will promise to scrap the Human Rights Act.  It’s why Chris Grayling is leading a review of our relationship with the European Court.  And it’s why the Conservative position is clear – if leaving the European Convention is what it takes to fix our human rights laws, that is what we should do.

Meanwhile, Justice Secretary Chris Grayling—who, until yesterday, was Wright’s boss at the Ministry of Justice—said:

We will scrap Labour’s Human Rights Act. We will make sure that with legal rights go legal responsibilities. Our Supreme Court should be in Britain and not in Strasbourg. And a future Conservative Government will do whatever it takes to make sure it is.

This stands in sharp contrast to the position occupied by Dominic Grieve. In a speech in 2011, he said that

we need to be absolutely clear about one fundemental [sic] matter: there is no question of the United Kingdom withdrawing from the Convention. The United Kingdom signed the Convention on the first day it was open for signature on 4 November 1950. The United Kingdom was the first country to ratify the Convention the following year. The United Kingdom will not be the first country to leave the Convention. This is not just the view of the Coalition Government. It is also the shared view of both parties who comprise that coalition … It is inconceivable that the United Kingdom could speak with any authority in the world about the need for the rights and freedoms that we hold dear and expect to be listened to if we withdrew from the Convention.

Grieve was certainly not averse to the possibility of amending or replacing the Human Right Act: in the speech, he advanced a thoughtful critique of the approach adopted by UK courts—but, to some extent, since recanted from—concerning the extent to which the jurisprudence of the European Court of Human Rights must be followed. However, exhibiting a strong commitment to the rule of law—against the backdrop of often-shrill calls from his own party to ignore the ECtHR in relation to such matters as prisoner voting—Grieve was clear that the UK was bound by its international obligations under the Convention. Referring to the controversy concerning the extent to which Article 8 ECHR constrains decision-making in the immigration context, he said:

We take the view that Parliament … is best placed to decide on difficult policy questions such as where the balance should be struck in relation to the deportation of foreign criminals. But it is important to note that in changing the rules we will respect the jurisprudence of the Strasbourg court and reflect the margin of appreciation that the Court has afforded to Member States in coming to such decisions.

Following Grieve’s departure, it is unlikely that similarly staunch defences of the ECHR will emerge from leading Conservative figures in the coalition government as the next election approaches. The way is thus cleared for the adoption of a harder line in the next Conservative Party manifesto.

As I have explained elsewhere, future policy in this area will be determined by reference to three key variables, namely: (i) whether the Human Rights Act is repealed; (ii) if so, whether it is replaced with a domestic bill of rights of some sort, and (iii) whether the UK withdraws from the ECHR. (If the third option is taken, then it is a given that the first option must be taken too, since the HRA would make little sense if the UK were no longer a party to the Convention.) The Shadow Justice Secretary, Sadiq Khan, has already, in effect, nailed Labour’s colours to the mast, indicating that the HRA will be retained and that the UK will remain a party to the ECHR. However, the strong likelihood appears to be that the Conservatives will advocate both HRA repeal and the enactment of a “British Bill of Rights”. And while it is harder to predict whether the nuclear option of withdrawing from the ECHR will also be advocated, the absence of strong voices within the Government calling for the UK to remain a party to the Convention must make Britain’s exit—or at least Conservative advocacy of that position—more likely. However, precisely what the significance of the radical, three-pronged policy would be if a future Conservative Government were to pursue it remains to be seen. It would naive in the extreme to suggest that the impact of such a change would be slight. At the same time, however, it is clear that the UK Supreme Court is already laying the foundations for a possible post-HRA, post-ECHR, future by rediscovering and articulating with renewed vigour the existence and potential of common-law constitutional rights. Legislative reform in this area would be hugely significant: but it is important to remember that it does not represent the whole of the story.