Withdrawal from the European Convention on Human Rights – the next Brexit?

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By Polly Botsford on

Catgate PM talks of “clean break” with European court and convention


Human rights are back on the agenda with media reports that Theresa May will put proposals to end the UK’s relationship with the controversial European Convention on Human Rights (and the court which interprets it) at the heart of her 2020 general election campaign.

Total withdrawal from the convention is a step up from the Tory manifesto pledge to repeal the UK’s Human Rights Act made by David Cameron over a decade ago.

Though a long-standing feature on law student syllabuses, it is well-known that the PM has a personal problem with the Human Rights Act. It evolves out of her long tenure as Home Secretary and frustration at what she saw as legislation which prevented her from being able to deport people such as radical cleric Abu Qatada. In a now-famous speech, she vilified the right to family life contained in the article 8 of the convention:

We all know the stories about the Human Rights Act: the violent drug dealer who cannot be sent home because his daughter, for whom he pays no maintenance, lives here; the robber who cannot be removed because he has a girlfriend; the illegal immigrant who cannot be deported because, and I am not making this up, he had a pet cat.

Human rights campaigners such as Liberty have continued to try and dispel what it calls ‘myths’ surrounding the act. The charity said:

The number of deportations prevented [by the act] is actually very small. In 2011, for example, 1,888 appeals were made against such deportation — only 185 of those were allowed on article 8 grounds (less than 10 per cent of total appeals, and less than 5 per cent of total deportations.)

And The Guardian fact-checked Theresa May’s ‘pet cat’ case and found it to be completely wrong.

Since Cameron’s pledge, there has been a lot of talk but no action: informal proposals for a new ‘Bill of Rights’ to replace the Human Rights Act were first mooted in a Conservative Party policy document in October 2014. Nothing was (or has since been) actually published. A consultation which was to be launched in December 2015 never happened.

A House of Lords EU Committee examined the issue of repeal of the Human Rights Act in the spring of last year but was pretty dismissive of it. No wonder then that rumours were that Brexit would put repeal on the back burner.

This recent report of a possible withdrawal from the convention has drawn ire from lawyers on the left: Labour peer Lord Falconer, once Lord Chancellor and now a partner at US law firm Gibson Dunn, argued that:

In an age of populism the rule of law, and a commitment to basic human rights, becomes all the more important.

Another lawyer has pointed out that a proposal to withdraw could have a detrimental impact on Brexit negotiations: any trade agreement with the EU would have to have a human rights clause in it. This is because any EU trading partner (which is what the UK may become) is supposed to demonstrate a commitment to human rights. A withdrawal from the convention is not quite what the EU has in mind.

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