Theresa May’s case for withdrawal from the ECHR: Politically astute, legally dubious, constitutionally naïve
Theresa May belongs to the Remain camp, yet favours leaving the ECHR. Mark Elliott analyses the arguments she has put forward to justify this position, and writes that although May’s position might be politically savvy, it turns upon legally specious distinctions between the EU and ECHR legal regimes, and is ultimately undermined by its constitutional naivety.
The Home Secretary, Theresa May, has argued in a speech staking out her position on Brexit that, although she is in favour of the UK’s remaining in the European Union, it should withdraw from the European Convention on Human Rights (ECHR). The purpose of this post is not to address the arguments for or against withdrawal. Rather, it engages with the quality of the Home Secretary’s underlying arguments. It concludes that however politically savvy May’s position might be, it does not withstand analysis. In particular, it turns upon legally specious distinctions between the EU and ECHR legal regimes, and is ultimately undermined by its constitutional naivety.
Does the ECHR “bind Parliament”?
May says that:
The ECHR can bind the hands of Parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of governments like Russia’s when it comes to human rights. So regardless of the EU referendum, my view is this. If we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its Court.
The assertion that the ECHR “can bind the hands of Parliament” is, at best, an oversimplification. The ECHR binds the United Kingdom as a State; it does not bind Parliament or (save to the extent that it is given domestic legal effect by the Human Rights Act 1998) any other domestic institutions. For example, it is now more than ten years since the European Court of Human Rights (ECtHR) ruled that UK law denying all prisoners the right to vote was incompatible with the Convention; yet that law remains in place, and it is not within the competence of UK courts to refuse to enforce it just because it breaches the ECHR. It follows that the ECHR only “binds Parliament” in the sense that it constrains Parliament’s freedom of action if Parliament wishes to avoid legislating in a way that would place the UK in breach of its obligations in international law. But that is true of a vast number of treaties to which the UK is a party — including the treaties that form the legal basis of the European Union, of which May is apparently keen that the UK should remain a member.
If the ECHR “binds Parliament”, why doesn’t EU law do the same?
It would seem to follow from what has just been said that if the UK’s being a party to the ECHR is an unacceptable constraint upon Parliament, then the same must be true of the UK’s being a member of the European Union. After all, the UK is not only bound in international law by its EU treaty obligations — EU law itself asserts primacy over domestic law. Moreover, UK courts can set aside — and have set side — Acts of Parliament that breach EU law: things that cannot happen in respect of the ECHR.
Theresa May, however, seeks to erect a spurious distinction between the constraining effects of EU law and the ECHR in an attempt to carve out space in which to come down in favour of the ECHR. The nub of this part of May’s argument runs as follows:
And turning to the final test: to what extent does EU membership bind the hands of Parliament? Of course, every directive, regulation, treaty and court ruling limits our freedom to act. Yet Parliament remains sovereign: if it voted to leave the EU, we would do so. But unless and until the European Communities Act is repealed, Parliament has accepted that it can only act within the limits set by the European treaties and the judgments of the Court of Justice. The freedom to decide whether to remain a member of the EU or to leave will therefore always be in the hands of Parliament and the British people.
The argument here seems to be that EU membership does not impinge upon parliamentary sovereignty — such that Parliament’s hands are not “bound” — because EU law has effect in the UK only as a result of the European Communities Act 1972. On this analysis, the UK Parliament is sovereign because it has voluntarily chosen, for the time being, to be constrained by EU law: Parliament’s capacity to unbind its hands means that its hands are not really bound in the first place.
Leaving to one side the nice philosophical questions that this raises, the obvious difficulty with May’s argument in respect of the EU is that it is hard to square with her position in relation to the ECHR. If EU law does not really bind Parliament for the reason May gives, then surely the same is true of the ECHR: just as the European Communities Act 1972 can be repealed, so too can the Human Rights Act 1998. However, we can go further. Whereas the 1972 Act can fairly be characterized as a constraint upon Parliament — on account of the fact that it authorizes domestic courts to set aside legislation that breaches EU law — the same is not true of the Human Rights Act 1998, which does not permit courts to set aside ECHR-incompatible legislation. If, then, EU law is not a constraint because Parliament can rid itself of the constraining effect of the 1972 Act, the ECHR is even less of a constraint because there is, in the first place, no domestic legislation that renders the ECHR a limitation upon Parliament.
The argument can, of course, be viewed in another way — that is, from an international law, rather than a domestic law, perspective. But that does not help to invest May’s position with cogency. Both EU law and the ECHR are binding upon the UK as a matter of international law, and therefore indirectly constrain Parliament by preventing it from doing certain things if it wishes to avoid placing the UK in breach of its treaty obligations. If the argument is that none of this amounts to a constraint upon Parliament because the UK could resile from its obligations under the EU treaties, then it is hard to see why precisely the same argument does not apply to the ECHR. Indeed, by advocating withdrawal from it, May acknowledges that the ECHR is precisely the kind of conditional, or potentially transient constraint, that EU law is too, thus demonstrating that the distinction she seeks to erect between the two European legal regimes is a false one.
What would a “bill of rights” amount to?
The Home Secretary goes on to say:
This is Great Britain – the country of Magna Carta, Parliamentary democracy and the fairest courts in the world – and we can protect human rights ourselves in a way that doesn’t jeopardise national security or bind the hands of Parliament.
David Allen Green has pointed out that Magna Carta “is of little or no practical use. Nobody in modern times seems to have ever relied on it to determine the outcome of a case … It is ornamentation, not legislation.” May’s suggestion that a domestic bill of rights would protect rights in a way that “doesn’t jeopardise national security” invites the question whether such a bill of rights would be any less ornamental than Magna Carta. A bill of rights that did not impinge at all upon a government hell-bent upon sacrificing fundamental rights on the altar of national security would hardly be a bill of rights at all. Similarly, the suggestion that a bill of rights would not “bind the hands of Parliament” is telling. Although, as noted above, the ECHR does not straightforwardly bite upon parliamentary sovereignty, the prospect of placing the UK in breach of its treaty obligations inevitably curtails Parliament’s room for manoeuvre. If May’s intention is that the rights contained in a bill of rights could be discarded by Parliament with equanimity, then that once again calls into question whether it would be a bill of rights in any meaningful sense.
May asserts that:
A true British Bill of Rights – decided by Parliament and amended by Parliament – would protect not only the rights set out in the Convention but could include traditional British rights not protected by the ECHR, such as the right to trial by jury.
This passage is not inaccurate, but it is arguably misleading. The reference to “trial by jury”, of course, is unsurprising: it is to go-to right when proponents of a domestic bill of rights argue that British legislation would be preferable to the ECHR. But protecting the right to trial by jury — whether legislatively or otherwise — is not remotely incompatible with the UK’s remaining a party to the ECHR. Having a “British Bill of Rights” is not in principle incompatible with remaining a party either.
The question therefore arises: what would be the point of a domestic bill of rights? If the aim is merely to supplement the rights protected by the ECHR, then something other than withdrawal — or, for that matter, repeal of the Human Rights Act 1998 — would be the obvious way forward. The conclusion must be that the primary aim would be to remove legal protection from some of the rights contained in the ECHR. That is not, however, government policy. When he appeared before the House of Lords Constitution Committee in December 2015, Justice Secretary Michael Gove said that the ECHR rights were “admirable” and that the government’s aim would be to “strengthen” the protection of rights.
The bottom line, then, is that many years after the Conservative Party first mooted replacing the Human Rights Act with a bill of rights, Theresa May gets us no closer to understanding exactly what might be in such a bill of rights and how — other than including an explicit reference to trial by jury — the rights contained in such legislation might differ from those found in the ECHR.
The EU Court of Justice and the European Court of Human Rights
The Home Secretary seeks to reconcile her stance in relation to the ECHR with her opposition to British exit from the EU by drawing a questionable distinction between the roles respectively played by the ECtHR and the Court of Justice of the EU (CJEU):
I also know that others will say there is little point in leaving the ECHR if we remain members of the EU, with its Charter of Fundamental Rights and its Court of Justice. And I am no fan of the Charter or of many of the rulings made by the Court. But there are several problems that do apply to the Court of Human Rights in Strasbourg, yet do not apply to the Court of Justice in Luxembourg. Strasbourg is in effect a final appeals court; Luxembourg has no such role.
There are a number of difficulties with this passage. For instance, the ECtHR in Strasbourg is not a court of “appeal”, “final” or otherwise; it does not hear appeals against judgments rendered by UK courts, and it does not overturn the judgments of such courts. That the Home Secretary nevertheless characterizes the ECtHR as an appellate court is telling, since it goes more generally to the way in which she misunderstands — or at least misrepresents — the nature of the ECHR as a system that is founded in international law and which therefore binds the UK as a State, rather than impinging directly upon the competence of domestic constitutional organs such as Parliament and the courts.
More generally, the implication of the above passage is that there is some radical difference between the effect upon UK “sovereignty”, loosely defined, of (on the one hand) the ECtHR and (on the other hand) the CJEU. In particular, the suggestion appears to be that the CJEU’s judgments are somehow less constraining upon the UK than the ECtHR’s. However, that is, at best, misleading. It is true that cases that reach the CJEU as “preliminary references” from Member State courts are not finally disposed of by the CJEU, the role of which is to determine the contested point of law and leave it to the referring national court to resolve the case by applying the law to the facts. But that does not detract from the fact that the rulings supplied by the CJEU in such litigation are binding in the sense that they determine the content of Member States’ legal obligations under the EU Treaties. Moreover, Member States can themselves be the subject of proceedings before the CJEU. And such proceedings, as Article 260 of the Treaty on the Functioning of the European Union makes clear, are nothing if not “binding”:
If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court … If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it.
May goes on to say — vis-à-vis the distinction between the respective roles of the CJEU and the ECtHR — that:
Unlike the European Convention on Human Rights, the European Treaties are clear: “national security,” they say, “remains the sole responsibility of each Member State.”
This claim is factually accurate, but misleading. Article 4 of the Treaty on European Union does say that “national security remains the sole responsibility of each Member State”. However, the implication of May’s claim is that whereas the ECtHR can rule on matters pertaining to national security, the CJEU cannot. The position, in fact, is more complex. Articles 5 TEU, which is concerned with the legislative competence of the EU, sets out the “principle of conferral”, according to which “[c]ompetences not conferred upon the Union in the Treaties remain with the Member States”. Article 4, anticipating Article 5, affirms, among other things, that responsibility for national security, not being conferred upon the EU, remains with the Member States.
However, the fact that the EU lacks legislative competence in relation to national security does not mean that the CJEU cannot consider matters pertaining to national security. Indeed, in deciding certain cases involving the EU Charter of Fundamental Rights — which is binding in some circumstances upon Member States as well as upon the EU itself — the CJEU has no choice but to consider national security. Although that expression does not appear in the Charter, it provides (in Article 52) that when it confers rights that correspond to ECHR rights, “the meaning and scope of those rights shall be the same as those laid down by the [ECHR]”. This means (as, e.g., Orfanopoulos v Land Baden-Württemberg  1 CMLR 18 illustrates) that the CJEU must, in cases that involve qualified ECHR rights, determine whether restrictions upon them are proportionate. And, since many of the rights in the ECHR are qualified by national security considerations, the CJEU must inevitably determine, when ruling upon a relevant Charter right in relevant circumstances, whether the limitation of the right is justified by national security considerations.
Finally, the Home Secretary turns to the possible implications of Brexit for the United Kingdom:
[I]f Brexit isn’t fatal to the European Union, we might find that it is fatal to the Union with Scotland. The SNP have already said that in the event that Britain votes to leave but Scotland votes to remain in the EU, they will press for another Scottish independence referendum. And the opinion polls show consistently that the Scottish people are more likely to be in favour of EU membership than the people of England and Wales … I do not want the European Union to cause the destruction of an older and much more precious Union, the Union between England and Scotland.
May does not, however, consider what implications that “much more precious Union” — in its contemporary configuration — might have for her preferred option of the UK’s withdrawal from the ECHR. This does not amount to a factual error, but it is a significant omission betraying constitutional myopia.
I have written before (here and here) about why repealing the Human Rights Act might be problematic in the light of devolution. However, withdrawal from the ECHR would raise even more profound difficulties. The difficulties are perhaps greatest in relation to Northern Ireland, given that the ECHR is a cornerstone of the Good Friday Agreement. However, the legislative competence of all of the devolved legislatures is limited by reference to the ECHR rights.
According to the Sewel Convention which regulates the enactment of UK legislation impinging upon devolved competence — and which is now statutorily recognized — the consent of the devolved legislatures would be needed if the ECHR rights were no longer to be regarded as limitations upon their competence. This is so because, as it is now understood (although this is not reflected in the legislation that acknowledges the Sewel Convention), the Sewel Convention is taken to require devolved consent in respect not only of UK legislation that addresses already-devolved matters, but also in respect of legislation that adjusts the scope of devolved competence. This means that the Sewel Convention would be triggered if the devolution legislation were amended so as to remove the ECHR rights as limits upon competence, since the net result would be to change (by expanding) the scope of such competence. And, given that the First Minister of Scotland said last year that it was “inconceivable” that the Scottish Parliament would consent to the repeal of the Human Rights Act, it seems unlikely that it would consent to the amendment of the devolution legislation so as to remove references to the ECHR rights as constraints upon competence.
Of course, it would be technically possible — even if the UK were to withdraw from the ECHR — for the devolution legislation to continue to deny devolved legislatures any power to breach the ECHR rights. But the prospect of UK legislation denying the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly authority to disregard rights from which the UK as a State had resiled is surely too distant — and bizarre — a prospect to warrant serious consideration.
The Sewel Convention — for all that it is now acknowledged in legislation — remains just that: a convention. As a result, it does not — to borrow the Home Secretary’s phrase — “bind the hands” of the Westminster Parliament as a matter of law. But as a matter of practical politics is does. The upshot is that while May’s rhetoric about the ECHR may serve her purposes very well, withdrawal is highly unlikely as a result of the way in which the European Convention is now woven into the fabric of the UK’s constitution. The Home Secretary’s speech doubtless serves a political end. But, politically astute though her attempt to carve out relevant distinctions between the ECHR and the EU might be, it is, for the reasons given above, an argument that is legally clumsy and constitutionally naïve.
Mark Elliott is Professor of Public Law at the University of Cambridge