The only thing that went through the mind of one bowl of petunias as it fell was “Oh no, not again”. And that is also pretty much the only thing that goes through the minds of legal commentators and other onlookers as yet again the Conservative party says it wants the United Kingdom to leave the European Convention on Human Rights (ECHR) or repeal the Human Rights Act (HRA) or both.
For about 20 years this has been a staple for what is now the main opposition party in parliament, though today in opinion polls and local elections it is often in a distant fourth position. From 2010 to 2024 this party was continuously in government, sometimes with substantial majorities. But the HRA and ECHR membership are still in place, and the Tories are not.
Again and again during this period, the Conservatives went through the motions of wanting to do something drastic. A commission was set up, which reported and then was ignored.
There was excited briefing of the press in 2014 with one proposal by then justice secretary Christopher Grayling. There was even a portentously named “Bill of Rights” from another justice secretary, Dominic Raab. But all this was to no avail. The HRA was not repealed and the UK remained a member of the ECHR.
Now, in opposition and wanting something akin to Brexit as a totem policy, the Tories are having another go. A Conservative lawyer and peer will conduct a review. One would think that the policy had already been reviewed and deliberated to its limit, but no. One more heave and then the Tories will have a way of releasing the UK from its human rights obligations under the ECHR, making it impossible for citizens to rely on their human rights against those with public power.
Perhaps this time it will be different. Perhaps the Conservatives, in the event that they are in government again, will work out a practical way of the UK quitting the ECHR which escaped all the governments from 2010 to 2024. Perhaps the cause of departing the ECHR will mobilise voters and supporters like a Brexit 2.0.
Or perhaps this will fail like all the previous attempts have failed. And if so, it will likely fail because of two reasons. The first, of course, is that the Good Friday Agreement (GFA) requires the ECHR to be directly enforceable in Northern Ireland against public bodies, including the police.
For the UK to quit the ECHR will require either the GFA to be renegotiated or for its terms to be breached. There is no way round this while Northern Ireland remains part of the United Kingdom. The UK’s membership of the ECHR is also a condition of other treaties to which the UK is party, such as the Trade and Cooperation Agreement between the UK and the European Union.
The other reason is that it is the wrong solution to a political problem. The use of the ECHR—especially Article 8’s right of privacy—has grown across Europe in migration and asylum cases, which is slightly odd given migration and asylum are not mentioned in Article 8. There is at least a question to be asked as to whether Article 8 is fit for this purpose.
A broader question, about the overall suitability of the ECHR, is now being asked by nine European governments. In a statement signed by their heads of government, they say, “[w]e want to use our democratic mandate to launch a new and open minded conversation about the interpretation of the European Convention on Human Rights. We have to restore the right balance.”
They are not threatening to flounce off, they are seeking to reform the ECHR. It is an important intervention—and it is a perfectly proper one. Every worthwhile human rights instrument needs constant review. The framers of a treaty in 1950 or in any other year do not have absolute power to bind future generations. Even the constitutions of the United States and other countries can be amended from time to time.
Of course, judicial decisions should be left to the judiciary. But the substantive law itself is not set by the judges, it is (or should be) set by politicians. In this way the ECHR and other codes are living instruments with inputs both from judges and legislators from time to time. There is nothing wrong with political engagement.
Wise politicians know this. Take the once notorious issue of prisoner votes, which led certain pundits and members of parliament to call for the UK to quit the ECHR or repeal the HRA. That issue was not solved by the UK walking away, but by political discussion and compromise. There was the Brighton declaration in 2012—under the Conservatives and led by then justice secretary Kenneth Clarke. And then there was a workaround which finally put the issue quietly to rest without any public outcry.
For that is what politicians do—or should do. They find the political means to achieve certain political ends. The constant threats of repeal and to walk away are a general admission of failure as politicians. If a government could find the political way to close down the prisoner votes issue, it should be able to find a way to resolve the Article 8 problems with migration.
The letter from the nine heads of government shows that in other member states of the ECHR there is a serious attempt to find a less hysterical solution than departing the ECHR. That should be a signal to our own politicians that engagement rather than departing is the way forward. But in our toxic post-Brexit political environment such diplomacy and compromise are unfashionable.
The Tories should remember that there are other ways of achieving goals than demands to leave and repeal. They should realise they are politicians and not protesters.
