12 August 2022
From time to time the demand will come from a government minister, or from one of their political and media supporters, for the United Kingdom to leave the European Convention of Human Rights.
This short blogpost sets out the most obvious difficulty for the government in doing this.
The difficulty – if that is the correct word – is the Good Friday Agreement.
This thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:
“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”
“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including: […] (b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission […]”
“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”
And so on.
The ECHR is not just mentioned in passing in a recital.
The ECHR is integral to the Good Friday Agreement – and that rights under the ECHR can be relied upon in Northern Ireland is a fundamental part of the agreement.
This means that if the United Kingdom (including Northern Ireland) leaves the ECHR there will be breaches of the Good Friday Agreement.
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When this is pointed out, sometimes the response is “Aha! Why not just have the ECHR applicable in Northern Ireland?”
Of course, there is nothing in the Good Friday Agreement which expressly requires rights under the ECHR to be directly enforceable elsewhere in the United Kingdom.
But.
Article 1 of the ECHR provides:
It would thereby not be open to the United Kingdom to be a party to the ECHR and pick-and-choose who within its jurisdiction can have the benefit of the rights.
This is in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.
And so, one can either have the United Kingdom outside of the ECHR or one can have the Good Friday Agreement, but it is difficult to see how you could have both.
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There are other ways to deal with the problems (as perceived) with decisions of the European Court of Human Rights.
In 2012 – during the Conservative-led coalition – there was the “Brighton Declaration”.
And the Supreme Court is already unafraid of showing its independence, as it did in 2013 – and which was welcomed by Conservative ministers:
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As this blog previously averred, there is also a distinction to be made between human rights law as a legal reality and “Human Rights Law!” as an event of political rhetoric.
Last October, the Lord Chancellor made a speech to the Conservative party conference where (tellingly) the only example he gave of a wayward human rights court decision was where the law had already been changed.
As such “Human Rights Law!” is often a turnip-ghost, which has been created by politicians and the media just to scare themselves and others.
For every actual problem with the ECHR there is a practical way of addressing that problem that does not require the United Kingdom’s departure from the ECHR.
And often, stripped of political and media gloss, the apparent problems are not there.
As with the Brighton Declaration, and as with the Supreme Court, problematic features of the ECHR and its application by the Strasbourg court can be dealt with in other ways.
Ways that do not also involve breaching the Good Friday Agreement.
That is what politicians should do.
And that – one hopes though no longer expects – will be what politicians will end up doing.
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Did that quote from Dave Cameron really indicate that he did not understand the difference between EU law and ECHR? How stupid do you have to be to be prime minister these days?
Well…….
(See present incumbent)
Loath that I am to defend Cameron, this might just be poor journalism, given that the article from which that headline is copied, also says:
“Two convicted murderers who argued that European Union law gave them the right to vote in UK elections have had their appeals dismissed by the supreme court at Westminster.”
https://www.theguardian.com/politics/2013/oct/16/votes-prisoners-supreme-court-rejects-appeal
But then again, I’ve no doubt that he had the capacity for such a stupid comment anyway…
Did you read the judgment? Much of it was indeed about EU law.
Can the UK government not simply change N Ireland to be a separate category, both “under its jurisdiction” and “permitted to act on its own as a legal entity”?
You mean, grant it independence? No — the Good Friday Agreement again. It affirms NI’s right to remain a part of the UK unless a majority wish it to be otherwise.
It could but it would still not solve the extremist’s Brexit Northern Ireland problem. Two examples of resulting insoluble issues: who would be the final arbiter on Rules of Origin, a Brexit issue that will potentially destroy N.I.’s largest industry, agriculture ? Which legal structure would oversee investigations into and deliverance of justice for all victims and their families of the multiple British state run counter insurgency operation atrocities of General Frank Kitson’s Dirty War which affects both UK and EU citizens ?
On the call-back to the 2013 Supreme Court ruling regarding the rights of prisoners to vote… I note that as of about 2 minutes ago, the Office of National Statistics web site indicated that there as of December 2021, there were 46,560,452 registered voters for parliamentary elections (and 48,844,292 for local elections – which seems an odd discrepancy). Meanwhile the Howard League reports that there are 81,051 prisoners in England and Wales, in prisons and Young Offender institutions.
In other words, even if everyone in prison decided to vote, they currently account for 0.17% of existing electorate and therefore unlikely to make much of a difference.
Which means, logically enough, that the resistance to granting prisoners the right to vote is one of suppressing their participation in any part of society. I dare say that this is all supposed to have a positive impact on the rehabilitation of former offenders back in to society, but for the life of me I cannot see it.
I’ve never understood the opposition to prisoner voting, it’s just a mindless kneejerk reaction. “They don’t deserve it.” “They lost their rights when they were convicted.” The only right they lost was the right to liberty.
There is no reason why, in an enlightened society, prisoners deserve additional loss of rights on top of their sentence. It’s the hang ’em and flog ’em thinking on crime and punishment. The government poses as being tolerant and fair minded while making thoughtless gestures to populist feeling.
Shamefully Labour, in the form of Shadow Justice Secretary Sadiq Khan, also supported the rejection of the judgement. I think it’s an incredibly short sighted view to take. No one ever puts any more thought into it except “we don’t like the idea.”
“The only right they lost was the right to liberty.”
That’s only true – just like with any other right – if those with the power to grant us rights, agree.
So if the legislature decides that loss of liberty also means the loss of other rights, than that’s how it is: we have no “inalienable” rights, only whatever the powers that be decide is convenient to grant us.
Personally I’m in full agreement with the idea of prisoners losing their right to vote: as far as I’m concerned they’ve broken their contract with society, so if they won’t play by the rules, why should have they have a say – however indirectly – in making them?
The sentence is imprisonment. No additional explicit limitation on being able to vote. Convicted criminals who aren’t imprisoned retain the right to vote. They’ve broken their contract with society too.
There are other restrictions due to prison rules for security reasons, but prisoners can write, phone, have visitors, etc. There’s no good reason not to let them have a postal vote as well. If nothing else, reengagement with society should be part of their rehabilitation.
“No additional explicit limitation on being able to vote”
What gives you the impression there needs to be?
AGAIN: the law – including our rights – is what the lawmakers say it is, and you not being happy with it doesn’t change that fact.
What gives me that impression is that the sentence is imprisonment. I know the law currently says convicted prisoners can’t vote, but that is an additional penalty. I don’t think it’s either necessary or justified.
I haven’t heard or read of anyone who can say why it is justified or necessary. It seems to be a gut feeling that they shouldn’t be able to, nothing more.
“… if they won’t play by the rules, why should have they have a say – however indirectly – in making them?” To help them back into society. It must be better to show courtesy and respect to a person even if they haven’t – yet – shown it to others. Imprisonment is punishment enough.
To explain the discrepancy EU citizens can’t vote in Westminster elections while some prisoners on remand now can.
I assume you meant “So explain the discrepancy …” as “To explain the discrepancy …” doesn’t make any sense to me as it doesn’t explain why prisoners can’t vote in the UK.
It isn’t really a discrepancy as they are entirely unrelated things.
Before Brexit, EU citizens resident in the UK could vote in UK elections. Now they can’t unless they have applied for settled status in the UK. The ECHR ruling on prisoner voting was pre-Brexit so I don’t get the connection with the situation post-Brexit.
Remand prisoners haven’t yet been convicted of a crime so I assume that’s why they are currently allowed to vote.
Even assuming they all voted the same way.
I believe EU citizens had the right to vote in local elections & that might explain the discrepancy.
Coincidentally, I reread the GFA only this morning. Despite it being a long document, it is very clear. The only opposition to the GFA came from the DUP, who refused to engage in negotiations. It is, of course, the DUP who are once again refusing to cooperate by withdrawing from Stormont.
The “problem” of the ECHR as it relates to the GFA is one of Conservative ideology. I very much doubt that anyone in Government has a clue about the practicalities of withdrawing from the ECHR when it comes to the GFA, nor any idea of what it will mean if the GFA collapses.
It is estimated that there are currently 12,500 people in positions of community responsibility who are members of Unionist paramilitary groups such as the UDA. The UDA was formed by the DUP as the paramilitary wing of the DUP.
Sadly, I have no doubt that sectarian violence will return to NI if the GFA is broken. Years of peace, fragile at first but stronger now, will be wasted. All in pursuit of an imaginary unicorn summoned up by the Tories in the name of Conservative ideology.
Well, Conservative ideology (for the present Parliament at least) is to purge wokery (Cultural Marxism in the shape of multiculturalism, feminism, ecologism, etc) in order to reset/renew the national economy.
Disassociating the UK from the ECHR is an essential element within this, notwithstanding the GFA.
Recall that there is a long standing view within Conservatave Unionism that the Labour negotiated GFA represented a national humiliation, and that ‘next time, we win’. (See Michael Gove’s old pamphlet, “The Price of Peace” for a summation of Conservative despair at the notion of Human Rights ).
Sadly, I suspect that dead Northern Irishmen and women would be considered an affordable price in the current ‘great struggle for national renewal’.
It is incorrect to describe the UDA as the creation of the DUP. Indeed, the UDA had its own political party, the Ulster Democratic Party (UDP). Incidentally, unlike the DUP, the UDP supported the Good Friday Agreement in 1998. Admittedly, the relationship between the UDA and the DUP has varied over the years. It is also worth saying that one of the factors that made the notion of incorporation of the ECHR an element in the GFA was that through the 1990s the DUP had expressed interest in the idea of a bill of rights as an area of common ground across the sectarian divide. An interesting instance of collaboration on these lines was a conference in Boston on bills of rights for Northern Ireland and South Africa, at which both representatives of the DUP and the constitutional nationalist party, the SDLP, spoke of the positive contribution a bill of rights might make to ending the conflict. This was in March 1991, before the peace process had even begun. Depressingly, a junior minister in the then Tory government, came along at the conclusion of the conference and dismissed bills of rights as un-British
Even Dominic Raab isn’t (yet) planning to withdraw from the ECHR. His Bill of Rights still keeps the ECHR in UK law, and thus the GFA secure.
It’s the Attorney General who has stated we must withdraw from the ECHR. For the ludicrous reason that that would make the Rwanda deportation policy legal. I think the UN might have something to say about that. The solution should be to abandon this illegal and immoral policy. I suspect even the Tory hardliners now realise it won’t actually work but it remains useful red meat for Tory voters who don’t question what is printed in the right wing papers.
In theory we could withdraw from the from the ECtHR if the words of the convention remain in NI law. But that would leave us joining the likes of Russia and Belarus in not recognising the Court. It’s wholly unsatisfactory.
This all chimes with Brexit and the Government feeling it can and should exercise the extra sovereignty we supposedly gained, even if it makes the UK like a third world dictatorship.
Which is all very well, but the manifesto for Brexit – the VoteLeave prospectus (that garnered a majority vote) was founded on the promise to ‘take back control of the border’.
Because neither we nor RoIreland ever joined Schengen we always had control of other borders.
We already have left the EU but, if the UK government ever did “deliver” the promised Brexit, they would already be in breach of the GFA, and struggling for volunteers to man the necessary border posts.
Northern Ireland is really a clever monkey trap designed to keep England in the jurisdiction of the European Court of Human Rights. The monkey cannot let go of the territory to escape from the jurisdiction. Well done, Lord Carson!
Though I’m not sure we, the English, are fair in expecting the Irish to save us from ourselves…
What an extraordinary comment. But you are right in assuming that the Irish will not save the English from themselves. Brexit is an entirely self inflicted wound. But we will be ok, remember the £350 million a week the EU is paying us. Yep, right.
Aye, it’s a sair fecht, right enough.