1st July 2023
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The overlooked obstacle to the United Kingdom withdrawing from the ECHR
From time to time the demand comes 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 obstacle for the government in doing this.
The obstacle – if that is the correct word – is the Good Friday Agreement.
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That 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.
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The ECHR is not just mentioned in passing in a recital.
Instead the ECHR is integral to the Good Friday Agreement.
Rights under the ECHR that can be relied upon in Northern Ireland are a fundamental part of the agreement.
It was important to Ireland – and to the nationalist community – that there were rights beyond the reach of Westminster and Whitehall (and Stormont) that could be enforced directly against the state of the United Kingdom, including against the police and security services.
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When this obstacle 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 may 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 would be in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.
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Perhaps the government of the United Kingdom could seek to renegotiate the Good Friday Agreement?
This would mean Ireland agreeing that those – especially nationalists – in Northern Ireland should have their existing legal rights against the United Kingdom state removed.
It would also mean Ireland agreeing that it would not be able to take the United Kingdom to court in Strasbourg.
And it would also mean – in practice – the United States and the nationalist community agreeing that legal rights and protections are removed.
This is not at all realistic.
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And the difficulty cannot be resolved by simply copying and pasting the Convention rights into a domestic statute for Northern Ireland.
For unless the rights are as constructed and interpreted by the Strasbourg court, and unless a disappointed party can petition the Strasbourg court directly, they are not “convention rights” – even if identically worded.
(This is partly why even Dominic Raab’s “Bill of Rights” that was to repeal the Human Rights Act had the convention rights in a schedule and a duty on public authorities to comply with those rights.)
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Part of the difficulty of Brexit was because some did not know or did not care about the particular situation of Northern Ireland. Some also pretended it was not an issue, but as we now know it needed special care and attention – and it still has not been fully resolved.
Similarly those who believe just leaving the ECHR would be easy may again be overlooking the Irish and Northern Irish dimensions.
And unless the Good Friday Agreement is re-negotiated, the United Kingdom leaving the ECHR would place the United Kingdom in breach in Good Friday Agreement.
Well, at least as long as Northern Ireland remains part of the United Kingdom.
And that would be another story.
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This post is partly drawn from this earlier blogpost.
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A blog post that engenders so much Schadenfreude.
Although the argument presented here seems persuasive, we should perhaps mix a little J. M. Barrie into the wisdom of J. W. Rees-Mogg and think that a little sovereignty dies every time someone says “I don’t believe in Brexit!”. So to allow the UK to leave the ECHR *and* leave the Good Friday Agreement intact *and* have an FTA with the USA *and* not have a chlorinated frankenchook in every pot, all we need do is drop now to our knees and cry out loud “I do believe in Brexit! I do! I do!”
And then remain on your knees until either it’s all alright, or it’s just all over.
I can appreciate your extended (legal) detailing of the issue, but for what it’s worth, this has been quite common knowledge on the EU side, well, since the GFA was agreed, but, more pertinently, since Brexit reared its head, and the status quo was challenged by UK’s red-lines during the exit negotiations.
And, one might add, that the GFA has been one of the biggest reasons why the EU has been twisting itself into a pretzel to accommodate/reason with UK’s temper tantrums, re the WA, the past seven years, while holding on to our red-lines.
Hasn’t been pretty, and it is far from done. There will be votes on the protocol, and host of other political traps to keep the issue in the headlines, well, until reunification — or something like that.
I think we can take it the Raab’s ‘Dipping in’ to the GFA never alighted upon the clauses including abiding by the ECoHR and the supremacy of the ECtHR over such matters. If he had read the whole document – despite the onerous task for a ‘lawyer’ to read over 30 pages – we’d not have had the farce of his ‘Bill of Rights’?
Raab was too invested in the repeal or removal of the HRA, somehow he got it into his head that …. frankly I don’t know what got into his head. But there are people who seriously want to repeal the HRA and bin the ECHR – I sometimes come across them on other forums. If the occasion arises, then I ask them why, why do they want to give up the protections which they themselves enjoy and which the HRA/ECHR has given them. When I do get answer, which is not always the case, then it’s often a desire to discriminate, i.e. to deprive other people of those protections.
Clearly they are convinced that they’d always be part of the ‘in’ group and would never be faced with a situation that this discrimination would be aimed at them.
Perhaps worth noting the latest politically right-wing calls for a referendum –
https://inews.co.uk/news/politics/tories-new-uk-referendum-migrants-rwanda-plan-appeal-court-2447225?ico=related_article_inline
Politicians like Braverman – (aided and abetted by Johnson and tabloids like Daily Mail) – will demonize the ECHR. Blame it for the ills of the world. If only we could get rid of Labour’s awful Human Rights Act ! It doesn’t always let us do what we want to do and as for those “lefty lawyers” …..!
There is a reasonable likelihood that such a referendum will secure a majority in favour of leaving ECHR. This cannot be ruled out.
Support for “stopping the boats” is also probably much higher within the country than many commentators appears to think. After all, it raises issues of resources as the population and therefore demand for services (e.g. NHS) increase. Many people raise this time-after-time with political candidates.
I don’t think the GFA is overlooked but the problems it raises are kept in the “too difficult” tray – (located between the in and out trays).
Northern Ireland already has a mechanism (Northern Ireland Act 1998) to hold a border-poll which could lead to a united Ireland within the EU and also within the ECHR.
Scotland wants a referendum for independence and, if that is achieved, would seek to join the EU. It would retain the ECHR.
This themes could be amplified much further but the future of the United (but badly fractured) Kingdom is at stake.
Better perhaps that a new UK government puts in place a system for immigration that permits applications (e.g. for asylum) to be made from abroad and to be processed within a sensible timescale.
Even that is not necessarily a panacea but would be better than where the UK is now.
As for the GFA – it cannot be abandoned and I doubt it will be because of American support for it – no matter who is in the White House.
Salamano was a grumpy old man whose only friend was a flea ridden dog whom he constantly abused. One day the dog disappeared and Salamano was bereft. If Salamano was not happy with the dog, he most certainly was not happy without the dog.
Perhaps the UK is a bit like Salamano?