European Convention on Human Rights could be “next target” after Brexit, experts say

Caitlin Logan

Council of Europe says leaving ECHR would be a “disaster” for UK and Europe

THE UK is leaving the EU, but what about the other European organisation it belongs to – the Council of Europe and its European Convention on Human Rights (ECHR)?

CommonSpace spoke to the experts about what the ECHR does, common misconceptions, and where the UK’s relationship with the Council might be headed.

The Council of Europe was founded in 1949 in response to the Second World War in order to promote positive relations between European countries. A core aim of the Council is to uphold human rights, as laid out in the European Convention on Human Rights and enforced by the European Court of Human Rights in Strasbourg.

At present, all countries in Europe but Belarus are members of the Council of Europe, and all members must be signed up to the ECHR. In 1998, the UK Labour Government introduced the Human Rights Act, which enshrines the ECHR into UK law so that it can be applied in UK courts.

READ MORE: Not sure of the difference between the EU and Council of Europe? See our explainer.  

The Conservative Government has hinted at the possibility of withdrawing from the ECHR, with reports that this was on the agenda for a 2020 manifesto before the snap election was called. This followed from the party’s 2015 manifesto pledge to scrap the Human Rights Act, with the intention of creating a British Bill of Rights.

The 2017 manifesto instead promised to remain a signatory to the Convention “for the duration of the next Parliament” and to hold off on repealing the Human Rights Act until after we leave the EU in 2019. This has led to continued uncertainty over the Tory Government’s future plans around human rights and the UK’s international obligations.

View from the Council of Europe

Andrew Cutting, a Council of Europe spokesperson spoke to CommonSpace about why the UK’s involvement in the Council of Europe is important and tried to clear up some misconceptions about the ECHR.

Cutting said: “The convention system in Europe is widely recognised as being the strongest international human rights system anywhere in the world.”

Cutting explained that the UK had a key role in developing the ECHR and said: “Ever since then the UK has been top of the class in terms of low numbers of negative judgements and the implementation of those judgements.

“The UK plays a large part in keeping the system going for the benefit of the whole continent, as well as benefitting people of the UK.”

This, Cutting said, is in contrast to the picture which is commonly painted in the press, and because of this, “the popular impression is skewed”. Cutting said that important judgements addressing human rights issues in other countries, such as Russia, Turkey, or Azerbaijan, were very rarely covered by the UK media.

“A lot of media coverage in the UK focuses on a small number of judgements against the UK.” Andrew Cutting, Council of Europe

Cutting added: “We’re well aware there have been a small number of high profile issues with the UK which have led people to question remaining part of that system.

“A lot of media coverage in the UK focuses on a small number of judgements against the UK where they concern applicants with whom people don’t have a lot of sympathy.”

Cutting gave the example of the blanket ban on prisoner voting – the UK remains one of only five countries in the Council of Europe to enforce such a ban, and pressure to change the law has been one of the reasons cited by the Tory Government for wishing to repeal the Human Rights Act.

In fact, the UK government would still be committed to the ECHR, with or without the Human Rights Act. Cutting explained: “It’s up to each member state how they organise their own legal system.

“Having said that, the Human Rights Act has been seen by a lot of people as setting a good example to other member states, and if the convention is applied by a national court it reduces the scope for cases to end up in Strasbourg.”

Cutting explained that countries “have quite a lot of leeway” in terms of how they implement judgements, and said: “The perception that the UK is being told what to do is misguided.”

“The negative impression of the ECHR was probably a factor in the Brexit vote.” Andrew Cutting, Council of Europe

He also noted that there was an “awful lot of confusion” between the EU and the Council of Europe, which he said was understandable given their similar names and flags.

However, Cutting added: “It is really important for the media and others influencing public debate to be clear on the differences, because they are two very different systems pursuing different aims. There is a tendency to bundle them up together as “Europe”.”

In fact, he said: “The negative impression of the ECHR was probably a factor in the Brexit vote.”

Now that the UK is leaving the EU, Cutting said, the role of the Council of Europe could be even more important, given “the UK’s need to engage with its neighbours after Brexit”.

Speaking of the possibility of the UK withdrawing from the Council of Europe, he said: “It would be a disaster, for the people of the UK and the convention system as a whole.

“It’s been talked about for a few years, and at quite a high level, so the possibility can’t be ruled out, but that would be a shame.”

The Academics’ View

Dr Tobias Lock, senior lecturer in EU Law at Edinburgh University and co-director of the Europa Institute, said that UK withdrawal from the ECHR could be in store.

Lock said: “For some, if Brexit doesn’t go as well as they hoped, if the UK remains close to Europe, or the European Court of Justice has some jurisdiction, they might see the ECHR as their next target.

“The Conservatives can’t replace the Human Rights Act just now without a majority, but in 2022 they might include this in their manifesto and promise to pull out of the ECHR.”

“Some people may be seeing this as a long game”, he suggested. “If you repeal the Human Rights Act, you may as well be tempted to leave the ECHR.”

Lock explained that the Human Rights Act has resulted in the UK “being largely in conformity with the convention”, but he said that nonetheless: “It has annoyed certain sections of the press and politics.

“You don’t have to go too far to find what Donald Trump would call “fake news” stories about the ECHR and the EU.” Professor Jim Murdoch

“There are those who have used sensitive topics such as rights of terrorists as an opportunity to whip up negative feeling.”

Without the Human Rights Act, Lock said there would likely be more ECHR judgements against the UK, and that this could then be used as the reason for leaving the ECHR.

Professor Jim Murdoch, human rights expert and Professor of Public Law at Glasgow University, said that the difference between the EU and ECHR was “not widely understood by many in Britain”, and that ill will towards the EU is likely to cross over to the ECHR as a result.

Murdoch said: “Much of it is the fault of irresponsible journalists belligerently or neglectfully confusing the two, with repeated mis-references in the populist press. You don’t have to go too far to find what Donald Trump would call “fake news” stories about the ECHR and the EU”.

He added: “I suspect that the gut anti-European feeling that is prevalent in certain sectors of the British or English electorate sees Europe as ‘the problem’.”

Murdoch said that the possibility of the UK leaving the Council of Europe seemed to be “still on the cards”, although this would be “a fairly extreme position to take”.

“I don’t know if it’s because they’re lazy or because of a genuine interest in making sure the population don’t understand.” Dr Kasey McCall-Smith 

Dr Kasey Kasey McCall-Smith, lecturer in International Law at Edinburgh University, also said a lack of understanding of the different organisations was a problem. She said that Theresa May “often confuses herself” between the ECHR and the EU, and that “the press are just as bad”.

She said that this poor understanding had also likely been a factor in the EU referendum: “I think the large majority of the Brexit process and Tory line has been to make sure people don’t understand it.

“It doesn’t take a rocket scientist to explain that this is the EU and this is the ECHR. I don’t know if it’s because they’re lazy or because of a genuine interest in making sure the population don’t understand.”

McCall-Smith noted the importance of the ECHR to in the current political climate in Europe, given the prevalence of “nationalist poison, xenophobia and racism”. She explained that the Council of Europe had also created other vital conventions such as the Istanbul Convention, which places a duty on member states to work to prevent violence against women.

McCall-Smith said the UK Government plays a positive role in speaking out against other states’ violations of the Convention but that, seemingly, “they want to have their cake and eat it too”.

Picture courtesy of barnyz

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