Law and policy round-up: Theresa May’s call for the UK to leave the ECHR

26th April 2016

Human Rights and ECHR

Theresa May, the Home Secretary, gave a speech yesterday which included a call for the United Kingdom to leave the European Convention on Human Rights.

The speech is set out in full at ConservativeHome, and (as it appears to be a statement on behalf of her department) it is also now on the Home Office site.

The statement is, of course, more about the politics of Brexit and succession to the Tory leadership than anything serious about law and policy.  It is a sort of counter-balance to her position on the UK remaining in the European Union.

For a number of reasons, not least that the Good Friday agreement requires the ECHR to have continual legal effect in Northern Ireland, this demand will go nowhere.

(I set out the seven hurdles for repeal of the Human Rights Act and for UK leaving the ECHR – including the problems presented by Northern Ireland and Scottish devolution –  in a post here last May.)

Given the office Theresa May holds, it is worth taking a moment to look at the Northern Ireland point, for the UK to leave the ECHR would require the UK to reopen and renegotiate the Good Friday agreement.

Any change to the agreement would, in turn, require fresh referendums in Northern Ireland and the Republic of Ireland.

It would also risk alienating the nationalists who accepted the Police Service of Northern Ireland only as long as it was subject to the ECHR.

It is, in all, a remarkable demand for a serving Home Secretary to make, and it is also extraordinary for the Home Office to post the statement on their own site as if it is government policy – and here it should be noted that policy on the Human Rights Act is (supposedly) under the Ministry of Justice, and not the Home Office.

This does not seem thought through. One suspects the Home Secretary does not realise (or does not care) about the implications of the UK leaving the ECHR – perhaps her desire to send a political signal to Tory back-benchers and the popular media is too great.

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5 thoughts on “Law and policy round-up: Theresa May’s call for the UK to leave the ECHR”

  1. Hasn’t Gove been sidelined where Europe is concerned? I seem to recall he was complaining he was being denied access to certain documents.

    Is it possible perhaps that May is getting ideas above her station and thinking that she now speaks for the government on the matter of human rights as well as home affairs?

  2. The “British Bill of Rights” malarkey is political dog-whistle poppycock of the worst kind, but is either the Good Friday Agreement, or the devolution settlement with Scotland (or Wales?), really an insurmountable point?

    At the risk of inserting the thin end of a wedge into a can of worms, surely there is a difference between “incorporation into Northern Ireland law” and “incorporation into UK law”.

    If the Northern Ireland Assembly can be prevailed upon to legislate the ECHR into domestic law there (and perhaps the legislatures in Scotland or Wales could do something similar), then presumably the way would be clear to repealing the Human Rights Act for the rest of the UK.

    And yes, the Sewel convention, s.2 of the Scotland Act 2016, and s.57 and s.100 of the Scotland Act 1998, etc, but the “United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not … [but] would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature”. *Normally*.

    This is a very abnormal situation, and it would be messy. But is there anything to stop the devolved legislatures reincorporating the ECHR in their domains if they so wished (just leaving the poor English without the right to life, the right not to be tortured, the right to a fair trial, the right to privacy, freedom of conscience, expression, and association, etc.).

  3. Just returning to this, a larger issue, it seems to me, is that the European Convention is an essential part of the EU’s acquis communautaire.

    No doubt the UK Parliament could exercise its untrammelled sovereignty and repeal the Human Rights Act, and so return us to the rather unsatisfactory pre-2000 position of being a signatory to the Convention with no way to enforce it under domestic law. Even with the Human Rights Act still in place, Parliament remains sovereign: prisoners still do not have the vote, nor do they have any compensation for that denial of their human rights. Perhaps the Government thinks warm words – like Magna Carta – are better than enforceable rights?

    But leaving the Convention entirely: is that even compatible with remaining a member of the EU?

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