Robert Jenrick MP, one of the two remaining contenders for the leadership of the Conservative Party, has made the UK’s withdrawal from the European Convention on Human Rights (‘ECHR’) a central part of his platform. This post will briefly attempt to address three issues arising from Jenrick’s policy: (i) the legally mistaken assumptions that appear to underpin it; (ii) the contestable nature of the view that advocating such withdrawal is an acid test of how right-wing a politician is; and (iii) the potentially far-reaching implications of ECHR-withdrawal given the UK’s particular constitutional circumstances.
ECHR-withdrawal and the Rwanda policy
To the extent that they transcend right-wing virtue-signalling — on which see below — Jenrick’s reasons for advocating ECHR-withdrawal are varied, and include his bizarre claim that ‘[o]ur special forces are killing rather than capturing terrorists because our lawyers tell us that if they’re caught, the European court will set them free’. It clear, though, that Jenrick’s core concern lies in his view that the ECHR unacceptably fetters the UK’s capacity to control immigration. In that context, he has made particular reference to the previous Government’s now-abandoned Rwanda policy, which would have involved deporting some asylum-seekers to Rwanda on a one-way ticket — not to have their claims for asylum in the UK processed, but to be considered for asylum in Rwanda.
That Jenrick sets such store by the Rwanda scheme is unsurprising, given the totemic status it has assumed within Conservative circles, as an indicator of politicians’ stance on the question of immigration that increasingly consumes the Party following Reform’s strong showing in July’s general election. But even if one were to accept that the Rwanda scheme, or something like it, was an appropriate response to the immigration-related issues that exercise so many politicians on the right today, the relevance of ECHR-withdrawal to the pursuit of such a policy is far from clear.
In its 2023 judgment concerning the Rwanda policy, the UK Supreme Court held the policy unlawful because it breached the principle of ‘non-refoulement’. That principle — which is protected by article 3 of the ECHR, with which the UK Government, thanks to section 6 of the Human Rights Act 1998 (‘HRA’), is required by domestic law to act in accordance — protects asylum-seekers from being returned to a country in which their life or freedom would be threatened or where they would face a real risk of torture or inhuman or degrading treatment. It also prevents country X (eg the UK) from deporting someone to country Y (eg Rwanda) when there is a real risk that country Y will itself breach the non-refoulement principle by deporting the person to country Z (where there would be a real risk of torture etc).
However, in concluding that the Rwanda policy was unlawful in 2023, the Supreme Court was careful to say that such an arrangement — whereby asylum-seekers are handed over to another country, which then determines their asylum claims — is not inherently unlawful. Rather, the Court held that, as matters stood at that time in relation to Rwanda, the risk of Rwanda’s failing to respect the non-refoulement principle (by, to adopt the terminology used above, deporting someone to country Z) meant that removing asylum-seekers to Rwanda would itself constitute a breach of that principle by the UK. To put this point another way, if Rwanda were to become as safe as Ministers in the previous Government insisted it already was, there would be no legal obstacle to a policy such as the Rwanda policy. Nor was there any obstacle to a policy involving deportation to an already-safe country for the determination of asylum claims there.
It is therefore not the case that the ECHR prevents an approach to immigration control along the lines of the Rwanda policy; all it stops the UK Government from doing is deporting asylum-seekers to countries that are unsafe within the meaning of the non-refoulement principle. This means that ECHR-withdrawal is unnecessary unless the UK wishes to pursue a policy in relation to asylum-seekers that would entail their deportation to an unsafe third country. But even if a future UK Government were to wish to deport asylum-seekers to an unsafe third country, ECHR-withdrawal would not succeed in making such a policy lawful. That is because the ECHR is not the only source of the UK’s legal obligations in relation to the non-refoulement principle. In its judgment on the Rwanda policy, the Supreme Court noted that that principle is also protected by other international treaties — the Refugee Convention, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the UN International Covenant on Civil and Political Rights — to which the UK is a party, and that it is also arguably part of customary international law. It follows that whether or not the UK remains a party to the ECHR, it will continue to be unlawful under international law to adopt immigration policies that breach the non-refoulement principle.
Human rights and the political right
In recent years, trenchant criticism of human rights and their associated apparatus — not least ‘lefty lawyers’ — has become a barometer within British political discourse of politicians’ right-wing credentials. To some extent, it is difficult to disaggregate right-wing criticism of human rights from antipathy to European institutions, given that the most prominent source of human rights law applicable in the UK is the ECHR, which exists under the auspices of the Council of Europe. Notwithstanding that they are distinct from the European Union, it is no great surprise that the Council of Europe and the ECHR should now find themselves in the post-Brexit crosshairs of the Eurosceptic right. However, while anti-European sentiment is doubtless part of the story, it is clear that some elements of the political right in the UK are increasingly sceptical about the role of an independent judiciary, particularly as a guardian of human rights, as a counterweight to legislative and executive power; the fact that some of the judges in play are European is merely the icing on the cake.
Yet it is worth pausing to recognise topsy-turvy this is when matters are viewed in their proper ideological and historical context. The rights protected by instruments like the ECHR are, at root, individual rights. As such, they were at one time viewed by the left with scepticism and as a reason to oppose the incorporation of the ECHR into UK law. In particular, the concern arose that the legal enforceability of such rights would prize individualistic interests, thereby undermining the capacity of Government and Parliament to pursue collectivist policies. Indeed, insofar as human rights protect the freedom of individuals, carving out a sphere of autonomy that must remain free from the intervention of the State, they are fit comfortably with right-wing political ideology. That is why, as Marco Duranti, The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention (OUP 2017) explains, it was Conservatives like Winston Churchill and David Maxwell Fyfe who ‘took the lead in championing the codification of fundamental rights in international law’. The contemporary discourse, according to which human rights-scepticism is a badge of right-wing honour, would have seemed strange indeed to them.
The reality is that human rights-scepticism — which is now so prevalent in right-wing British politics that even ‘moderate’ Conservative leadership candidates like Tom Tugendhat felt obliged to flirt with at least the possibility of ECHR-withdrawal — is ultimately a barometer not of how (at least in the traditional sense) right-wing a politician is, but of the extent of their populist and authoritarian inclinations. As noted above, human rights-scepticism on the British political right, while undoubtedly animated to some extent by anti-European sentiment, is also indicative of a much broader antipathy to the capacity of institutions to counterbalance governmental power. Such impulses informed Boris Johnson’s attempt unlawfully to prorogue Parliament — at time when even the representative legislature was to be pitted against ‘the people’ — and his Government’s subsequent proposal to replace the HRA with a drastically weaker ‘Bill of Rights’.
What if?
What would be the consequences if, under a future Conservative Government, the UK were to withdraw from the ECHR? It is important to begin by recognising that it is entirely possible for a country to have a robust system of human rights protection without being a party to the ECHR. Indeed, dozens of precisely such countries exist outside the ECHR’s geographical scope. There would, however, be two implications peculiar to the UK if it were to withdraw.
The first is reputational, given that the only two European countries that are not parties to the ECHR are Russia and Belarus. Of course, even against that background it does not necessarily follow that the UK’s reputation as a state committed to respect for human rights would be destroyed if it were to withdraw from the ECHR. If, for instance, such withdrawal were to be accompanied by the creation of highly robust domestic regime for upholding human rights, that would go at least some way towards restoring the UK’s reputation.
But that leads on to the second point: that the creation of such a regime would be both unlikely and difficult. It would be unlikely because any Government committed to a policy of ECHR-withdrawal would undoubtedly also be committed to a fundamental reconfiguration of the judicial role in the human rights arena. Indeed, Robert Jenrick has signalled that he would wish to see the HRA (which gives domestic force to the ECHR) replaced with a ‘British Bill of Rights’, the last iteration of which was essentially an exercise in weakening the courts’ powers.
Meanwhile, a strong post-withdrawal domestic human rights regime would difficult to achieve in the face of the UK constitution’s central feature: namely, the principle of parliamentary sovereignty. According to that principle, the law-making power of Parliament is legally limitless. Among other things, that means that courts cannot strike down or otherwise treat as invalid legislation enacted by Parliament — even if it removes the most fundamental of rights. In contrast, under the HRA, courts can issue a ‘declaration of incompatibility’ if domestic legislation breaches the ECHR. And while that does not in itself invalidate the offending domestic law, it signals that the UK would be very likely to lose the case if it were to proceed to the European Court in Strasbourg, and that the UK is therefore obliged as a matter of international law to amend the incompatible legislation. The HRA thus provides — in a way that it would impossible for a purely domestic human rights regime to provide — a means by which the power of the UK’s sovereign Parliament, which is unbounded by domestic law, is effectively constrained by operation of the UK’s international obligations under the ECHR.
Where this leaves us is that Robert Jenrick’s policy of ECHR-withdrawal is unnecessary (unless he wishes to deport asylum seekers to unsafe countries with regard to the non-refoulement principle); unfit for purpose (because doing so would continue to place the UK in breach of several other obligations under international law); part of an agenda that, properly understood, is not merely (or at all) right wing, but is rather authoritarian and populist in nature; and likely to weaken human rights protection not only for the immigrants who so appear to exercise Mr Jenrick but for other vulnerable groups and everyone else as well.
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