Introduction

The suggestion is being advanced by certain politicians and others that the United Kingdom might withdraw from the European Convention on Human Rights (‘ECHR’) for immigration purposes, in order to refuse entry, detain and/or remove persons subject to immigration control in greater numbers, with concomitant greater freedom to choose who is to be so controlled. At present these politicians are to be found mainly but not solely in the Reform Party and the Conservative Party.

The suggestion is debated in terms of domestic law and policy, with some scant consideration being given to the impact on the Good Friday Agreement in Ireland (both parts) and in relations with the European Union. What is neglected, is any discussion of the impact of withdrawal on UK international relations and the exercise of UK power by means of foreign policy. As discussed below, this is a serious omission. The UK has many interests and concerns both in the European region and internationally, of which migration is but one. To contend that ECHR withdrawal is a simple act without consequential effect is simply to blind oneself to international political reality, that is to refuse to consider that reality, and in so doing to cause serious damage to UK national interests. It is both reckless and irresponsible.

Legal arguments

The argument deployed in favour of the suggestion of withdrawal is that as regards immigration policy, the ECHR, domestically via the Human Rights Act 1998 or directly in the judgments of the European Court of Human Rights (ECtHR), represents an unacceptable external constraint on parliamentary sovereignty; the latter being the constitutional principle whereby Parliament (In practice the House of Commons) is cast as the supreme legal authority for the making and unmaking of laws. Parliamentary sovereignty asserts the primacy of the legislature over the courts, no Act of Parliament may be judged to lack validity. A further aspect of that supremacy is that no Parliament may bind its successors. Legislation is made by a Parliament that has a democratic mandate, with the exercise of governing power being undertaken by Ministers accountable to that Parliament under the principle of ministerial responsibility.

But for the ECHR and its application to the making of legislation and government policy and most especially in its application by judges in the UK and at the ECtHR (so the argument runs), it would be possible for Parliament (in the making of laws) and government (in the exercise of power) to control immigration numbers and, additionally, for the government to remove certain persons considered to be undesirable but who have secured rights of residence in reliance on ECHR rights. In making this argument, other impediments to immigration control and expulsion, such as the high cost of removal, the problems of documenting and securing the identity and nationality of persons, the role of the common law in fundamental rights protection, and a want of re-admission co-operation by home states, are downplayed or discounted as hurdles over which to leap.

As regards, the consequences of ECHR withdrawal for the UK constitutional order, this is seen as a matter of re-asserting the parliamentary sovereignty as a constitutional principle. The constraint of fundamental rights protection in the operation of the ECHR, as protected by the courts, is to yield to this primary political value.

The counter-arguments run along well-known lines. First, the ECHR (and especially those parts transposed into domestic law by the Human Rights Act 1998) deploys a precise catalogue of fundamental rights that, absent a UK written constitution, entrenches fundamental rights for all subject to UK jurisdiction. Second, that in so doing, that entrenchment reflects, develops, and amplifies fundamental rights protection found on a case-by-case basis in the common law. Third, that protection of fundamental rights by the courts takes its place alongside the articulation of the democratic principle (expressed through elections to a Parliament that in turn makes laws, as well as the by principle of ministerial responsibility making government accountable to Parliament) as one of the principles of the UK constitutional order. Fundamental rights protection under the common law and the ECHR forms part of the laws by and under which governing power is exercised and limited in the public interest. That in turn is an aspect of a further constitutional principle, the separation of powers, one part of which is the distinct role of the judiciary in the interpretation of laws and in ensuring their lawful application where disputed. Fourth and not least, such fundamental rights protection advances ethical values by which UK society chooses to organise its civil and political life.

These legal arguments for and against the UK’s continued participation in the ECHR deserve full interrogation. However, in addition, they need to be supplemented by a full consideration of the consequences of such withdrawal for UK international relations and for UK foreign policy.

The ECHR in the Council of Europe system

As is well-known, the Council of Europe (CoE) is an intergovernmental organisation of states that promotes democracy, the rule of law and human rights in the European region. The ECHR is its principal international treaty. States joining the CoE must sign and ratify the ECHR. The CoE has several organs, among which are the ECtHR, the Parliamentary Assembly, and the Committee of Ministers (foreign ministers from member states operating as its decision-making body).

The ECHR and its additional protocols (where ratified) contain a catalogue of fundamental rights, by which the member states agree to be bound. That catalogue reflects the common legal heritage of European states of a liberal democratic character. Many of those CoE member states already protect fundamental rights by way of written, single-document, legal constitution that is supreme at the apex of its hierarchy of laws, with the ECHR as a backstop standing behind such domestic arrangements.

Forging its own path whereby the principle of parliamentary sovereignty stands at the apex of its political constitution, at present the UK underpins the protection of fundamental rights in the common law as well as by giving domestic effect to much of the ECHR by way of the Human Rights Act 1998. The balance struck by that arrangement respects the ultimate authority of Parliament to reverse the effect of a court judgment by making new law should it so choose. The wisdom of the balance struck is much debated. However, in the result, the UK shares in a common set of legal values and standards with neighbouring states.

However, if it withdraws from the ECHR and even if that withdrawal is accompanied by a Bill of Rights for British citizens, it is very likely that the UK will be obliged to leave the CoE. If it does not choose to do so at that point, the UK may be expelled. Absent a satisfaction of its commitment to the common standards in Article 3 of the Statute of the CoE (the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms), the Committee of Ministers may request that the UK withdraw. Absent such compliance, it may be expelled under Article 8 of the Statue of the CoE. The expulsion of Russia is the precedent.

The UK’s Council of Europe treaty commitments

Were it to leave the CoE the UK stands to lose far more than adherence to a common set of fundamental rights with its European neighbours. Across a vast range of public policy concerns the CoE has treaties which it member states may sign and ratify. The UK has ratified and therefore participates in over 120 such treaties. All stand to be lost. These treaties range over important international and transnational areas of public policy such as the transfer of sentenced persons, extradition, mutual assistance on tax matters, the protection of children against sexual exploitation and sexual abuse, cybercrime, mutual assistance in criminal matters, corruption, safety at sporting events, preventing and combatting violence against women and domestic violence, and the recognition of higher education qualifications.

These are matters of substance, each with cross-border elements, where such multilateral treaties and international co-operation advance the public policy concerns of each participating member state. Absent the convenience of such multilateral arrangements, outside of the CoE, the UK would need to seek bilateral arrangements with other European states were it to wish to pursue such arrangements to deal with these public policy issues of mutual concern. Those other states may lack the appetite to invest time and resources to make bilateral agreements with the UK when perfectly serviceable already-agreed, multilateral arrangements have been abandoned by the UK. The resulting loss of international co-operation would be borne primarily with the UK; the other CoE member states retaining the benefits of multilateral co-operation with each other.

International treaties in international relations – much more than law

Those persons who advocate for ECHR withdrawal make their case by reference to the constraint it is said to exercise on the democratic will for greater and more selective immigration control. For them, it is a fetter on the exercise of sovereign power. Putting to one side the singularity of their focus on one area of substantive policy (immigration), as well their want of concern for other aspects of the constitution such as the role of the judiciary where the principles of limited government and of the separation of powers form part of the constitutional order, there is one major blind spot in their field of vision: they take no account of the role of international treaty-making as the exercise of sovereign power in order to create a more favourable international political environment for the UK (or indeed any state).

A state that ratifies the ECHR (or any other treaty) is not or not solely agreeing to be bound by an external normative constraint on the exercise of its sovereign power internally and/or externally. Instead in the exercise of that very sovereign power, it is modifying its own legal order (to the extend that it decides) and also projecting its power beyond its borders to secure gains internationally or transnationally where it would not otherwise have jurisdiction and/or the ability to exercise power to secure its goals. That is the position regardless of the topic of the treaty concerned, be it trade, supply of services, mutual assistance on tax, defence, extradition, or even human rights.

In a liberal democratic state characterised by the rule of law, within its territorial jurisdiction a state has lawful authority to exercise power, a monopoly on the lawful use of force, the means to exercise power of many kinds, and the institutions and rules (including constitutional rules) to facilitate and regulate these activities. Beyond its borders, different circumstances obtain. A state faces numerous other states each with their own priorities. These other states will each have their own measure of power. Further, internationally, no state has lawful authority over any other, a state may be subject to the use of force by another state, and without more there is a lack of both institutions and rules to regulate relations among and between states. Treaties help a state not simply to supply rules between and among states but to enable that state to advance its political goals beyond its borders where it lacks jurisdiction and powers, as well as to protect and regulate its exposure to the power of other states. Treaties can function as a power-multiplier, to secure goals that would otherwise be unachievable. The ECHR is one such treaty.

In the European region there are many states for a relatively small geographical neighbourhood. While most of them share a core of broadly similar political values, the representative government of each state is responsible to its own citizens and, accordingly has its own priorities. Further, these states face primary political issues of mutual concern: for example cross-border trade and other economic activity (services, capital, etc.), the need to secure borders and provide for defence, the maintenance of freedom of navigation, protection from environmental degradation, and the terms of the movement of their own citizens beyond their borders. These goals are not easily attained by bilateral administrative or legal agreements between states.

The CoE as a multilateral treaty-based organisation with both deliberative and executive organs that enable states in the European region to work together to achieve shared goals, whilst respecting the particular priorities of their own citizens. Like NATO in the field of defence, or the EU in field of the movement of capital, services, goods and citizens, the CoE enables participating states to project their power beyond their borders to secure their chosen goals. A state’s power is enhanced, projected, and multiplied by its participation. That a state may trade-off an aspect of a priority in one area for a gain on another is nothing to the point; the net gain for the state is an expansion of its reach unachievable on any other basis.

The role of the ECHR in the CoE is to enable core fundamental rights that are the shared legal and political inheritance of the participating states to be guaranteed within all member states. The ECHR creates a bedrock of trust upon which further co-operation on substantive areas of policy may be built. As a result of CoE membership, matters such as the right to a fair trial, freedom from torture or inhuman treatment, freedom from arbitrary detention, and respect for property rights, can be taken off the table as matters of concern in relations between states. Further, the CoE’s the Committee of Ministers (foreign ministers) and the Parliamentary Assembly (drawn from national legislatures) ensures that it remains the creature of its member states. In the result, with that bedrock of trust having been established, CoE member states are able to co-operate on other matters such as the transfer of sentenced persons, extradition, mutual assistance on tax matters, etc. Further, they are able to make treaties on substantive policy issues outside of the CoE secure in the knowledge the ECHR underpins a common set of fundamental rights secured by law. The Good Friday Agreement between the UK and Ireland and the UK-EU Trade and Co-operation Agreement are the obvious examples but the point applies to all that depend on a level of trust between states as to their shared legal and political standards.

Those who advocate for the UK’s withdrawal from the ECHR take no account of these matters or are reckless as to the consequences of withdrawal. Departure from the CoE would be no mean thing for the UK. It would lead to manifest loss of ability for the UK to project its power beyond its borders in the European region to achieve its public policy goals in a whole range of substantive areas. As noted above, the appetite for remaining CoE member states to make equivalent bilateral arrangements would be modest. Across a whole range of public policy areas, far beyond migration from outside Europe, the UK national interest would be severely damaged, its power to shape the international environment to its advantage in key areas of concern would be reduced, and it would suffer a loss of leverage in seeking to make future arrangements. Those who advocate for withdrawal would profit from comparing the UK to France, a country similar to the UK in terms of population, economic size and location. While not without its own domestic debates on various international and transnational issues, France participates in international treaties and institutions in the European region on the basis that its power is enhanced, projected, and multiplied by its participation. However, it is vigorous too in defending and advancing its vital national interests when the occasion demands. In the result, it plays a hand similar to that of the UK to far greater effect.

Conclusion

The political folly of the proposed UK withdrawal from the ECHR  and therefore from the CoE is clear. As regards those who advocate for withdrawal, their focus on the supposed gain in respect of border control blinds them to the severe damage that would be caused to the UK national interest (however defined) across a whole range of other areas of high importance to UK international relations.

In any event, the supposed gain in respect of border control is misplaced. Irregular migration would continue, those at risk of harm in home states would still require surrogate protection, documenting those with no right to remain would still be a problem, re-admission arrangements to home states would remain imperfect, the cost of removing persons would remain high, and the common law would very likely operate to protect many fundamental rights. 

Following the UK’s departure from the EU, the UK’s CoE membership has taken on an added salience. It serves as a guarantee to other states in Europe (both EU and non-EU) that the UK remains committed to the core legal and political values that are given effect in the internal legal order of those states and in the relations between them. In addition, it enables further multilateral co-operation on areas of mutual concern. The national interest requires that the UK continues its CoE membership and continues to use it as the bedrock of its European international co-operation. The case for withdrawal must be exposed for its political folly.