Leaving the European convention on human rights won’t stop the boats – but it will create other problems for the UK

F aced with legal and practical challenges to getting planes off the ground to Rwanda, Rishi Sunak has threatened to leave the European convention on human rights (ECHR). The prime minister argues the convention, which is part of UK law through the Human Rights Act, is preventing him from “stopping the boats” and curbing illegal migration into the UK.

Sunak has vowed not to let a “foreign” court (the European Court of Human Rights) block the policy to send irregular migrants to Rwanda. The court intervened in June 2022 to stop a flight to from taking off.

But withdrawing from the ECHR would not, legally or in practice, give the government the power to “stop the boats”. It would, however, create a number of other headaches for the UK and its international reputation.

The key legal problem hindering the Rwanda plan is a December 2023 ruling from the the UK Supreme Court, which found that the policy was unlawful and that Rwanda was not a “safe” country for asylum seekers. This was because of the risk that people removed to Rwanda could be at risk of “refoulement” – being sent on to countries where they would face irreparable harm.

The ECHR protects against the risk of refoulement, but does not prevent the lawful deportation of a person who has claimed asylum, nor does it stop a country sending them to a safe third country. What this means is that if Rwanda is a safe country, on the evidence, then the policy of sending asylum seekers to Rwanda to be processed and settled would not necessarily violate the ECHR.

As the Supreme Court pointed out, non-refoulement is protected in many other international conventions and treaties that the UK has signed up to. This includes the UN refugee convention, and the UN international covenant on civil and political rights. It’s also protected in domestic UK law. Leaving the ECHR, therefore, would not free the UK of the obligation not to send people to a place of harm.

Beyond the legal obligations, there’s also an issue of policy. As a deterrent to illegal migration, the Rwanda policy is unproven at best. The Home Office couldn’t find evidence that domestic policies influence people’s decision of where to seek asylum.

Research indicates that people are more likely to choose based on social networks, shared languages and diaspora communities. Due to organised crime and human trafficking, many also do not choose their destination at all.

Flights to Rwanda would also not solve the current backlog of over 130,000 people awaiting an asylum decision. More people arrived via small boat to the UK in January 2024 than the estimated 1,000 people Rwanda could process over the course of the initial five years planned for the policy.

— Rishi Sunak has failed to deliver on his key promise to ‘stop the boats’.

Other consequences

Sunak is not the first Conservative leader to call for a break with the convention. David Cameron called for UK withdrawal in 2012 over the court’s decision that a blanket ban on prisoners voting violated their rights. Theresa May made a similar call in 2016 over blocks to the deportation of radical cleric Abu Qatada to Jordan to face trial for terrorism offences.

But leaving the ECHR would have other consequences for people in the UK, and for the UK internationally.

Withdrawing would leave the UK without a codified and legally binding human rights document. Human rights protections in the UK have been driven by the ECHR since it was “brought home” in the Human Rights Act in 1998. For example, following judgments concerning the convention’s right to privacy, homosexuality was decriminalised in Northern Ireland, phone-hacking was made illegal, and employers can no longer read employees’ emails without consent.

The Human Rights Act gives effect to ECHR rights in UK law. It creates a legal obligation for all public bodies (including police, hospitals, care homes and local councils) to abide by ECHR rights. The law also requires the courts to interpret law in so far as they can in compliance with the convention.

Leaving the ECHR would make the Human Rights Act meaningless, like a car without an engine. In practice, to leave the ECHR the government would have to repeal the HRA (and other legislation for the devolved administrations).

It would also have international consequences. The Good Friday agreement that largely ended the Troubles in Northern Ireland requires the ECHR to be part of the law there. There is no way for the UK to leave the ECHR without violating the agreement, causing issues for the peace settlement in Northern Ireland, as well as the UK’s relationship with Ireland, the US and the EU.

Relations with the EU would also be strained. The UK-EU trade and cooperation agreement, which governs the post-Brexit relationship, commits explicitly to the ECHR when it comes to human rights protection, particularly regarding security and judicial cooperation. The EU stated that if the UK withdraws, it would terminate this part of the agreement, effectively stopping, for example, extradition of criminal suspects to face trial in the UK.

Beyond this, the UK currently has one of the strongest records of compliance with the ECHR before the European Court of Human Rights. Withdrawal would set a precedent for other countries with far worse records, and weaken the UK’s reputation for holding itself and others to account.

Sources:

▪ This piece was originally published in The Conversation and re-published in PUBLIC SQUARE UK on 20 June 2024. | The author writes in a personal capacity.

▪ Cover: Flickr/Number 10. (Licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.)