It has long been an issue that the European Court of Human Rights (hereon to be referred to as the ‘Strasbourg Court’) has the authority to supersede judgements made by UK courts. However, events of recent months, primarily the dispute over the UK Government’s Rwanda policy, have brought this issue to the front and centre of public debate. The Rwanda policy is a five-year trial program to send some asylum seekers to Rwanda to claim asylum there instead. The intent of the policy is to deter people from using illegal and dangerous routes across the English Channel.
The fact the Strasbourg Court overruled the UK Court’s decision via an “interim measure", without any legal reasoning, is an affront to the UK’s legal sovereignty following Brexit. Rule 39 of the Strasbourg Courts’ ‘Rules of Court’ signifies how the Chamber, President of the Section, or Duty Judge may only:
“indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.”
The Rwanda example highlights an idiosyncrasy in how the Strasbourg Court operates in opposition to its intended purpose. Rule 39 of the Convention states that interim measures are not actually legally binding but instead serve to advise what the Court believes is the appropriate course of action.
Moreover, Richard Ekins, Professor of Law and Constitutional Government at the University of Oxford, makes the case that the Strasbourg Court has “remade the convention in its own image” with the Court asserting over the last two decades that failure of nations to comply with these non-legally binding “interim measures” constitutes a breach of Article 34, which states:
"If your rights contained in the Convention have been violated in one of the member states you should first appeal to all competent national authorities. If that does not work out for you, then you may appeal directly to the European Court of Human Rights in Strasbourg."
This assertion allows individuals to allege that a state's failure to abide by these, non-legally binding “interim measures” constitutes a violation of their human rights.
Another area of concern is the politicisation of the Strasbourg Court, and how it influences the decision-making process. Lord Moore of Etchingham aptly described how, from the 1970s onwards, the Court decided that the European Convention of Human Rights would act as a “living instrument”, essentially allowing the judges of the court to freely reinterpret the law as attitudes change over time, potentially risking politicisation of the judicial process. However, there are potential solutions to these issues.
Martin Howe QC, chairman of Lawyers for Britain, argues that the ideal situation would be for the UK to remain within the ECHR, commonly regarded as being the most robust treaty for human rights protection in the world, but leaving the jurisdiction of the Strasbourg Court. This scenario would allow the UK to retain strong human rights laws without being subject to extraterritorial jurisdiction in Strasbourg. However, the Convention was amended to remove this possibility years ago, rendering this outcome an idealistic hypothetical.
Therefore, restoring the UK's legal sovereignty from Strasbourg would require the it to leave the ECHR. Understandably, this is where the controversy lies. Only two countries have ever left the ECHR, namely Greece following a military coup in 1967. and Russia following its illegal invasion of Ukraine in February 2022.
Haroon Siddique, legal affairs correspondent for The Guardian, raises justifiable concerns in relation to leaving the ECHR. Not only would it damage the UK’s international standing by placing it alongside the aforementioned group of nations who have left the ECHR, but Amnesty International UK’s chief executive attests that it would weaken the UK’s ability to hold other nations to account on their human rights obligations.
Because only way to achieve legal sovereignty from Strasbourg is through leaving the ECHR- an action only previously taken by a military dictatorship and a pariah state, the possibility of such a decision has prompted fears of an erosion of human rights law in the UK. Introducing Britain's own ‘UK Bill of Rights’ per the Government’s intended ambition, would not remove concerns about politicisation; future governments could always amend the Bill to suit the political agenda of the time- a criticism often levied towards the Strasbourg Court's interpretations of the ECHR. However, it is key to acknowledge that the details of the UK Bill of Rights outline that the UK Government is “committed to remaining party to the ECHR” before describing how the Bill will strengthen free speech and affirm Parliament’s supremacy in the making of laws.
There are valid fears of the potential erosion of human rights laws by the current or future governments as a consequence of leaving the ECHR and the jurisdiction of the Strasbourg Court. However, leaving the ECHR is a fundamental requirement in restoring the UK's legal sovereignty post-Brexit. The UK will still be subject to the United Nations International Bill of Human Rights. Furthermore, there is nothing to prevent the UK from re-introducing the legal content of the ECHR in the form of the ‘Bill of Rights’ after leaving the Convention, as well as adding further protections to freedom of speech and strengthening additional rights, such as those related to abortion and same-sex marriage.