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Could The ECHR Be A Battleground In The Next Election?

Back in February 2023, the threat to pull the UK out of the European Convention on Human Rights (ECHR) made headlines in The Sunday Times. The threat had been floated by political aides and government ministers since 2012. While the threat has never been taken seriously, some experts warn that pulling out of the ECHR could be the new Brexit and a battle ground for the next general election.

A source close to prime minister Rishi Sunak told The Sunday Times: “The PM has been clear he wants to introduce legislation that meets our international obligations. This bill will go as far as possible within international law. We are pushing the boundaries of what is legally possible, while staying within the ECHR.”

If the UK were to withdraw from the ECHR, it would join two other countries, Russia and Belarus, both of which currently face sanctions in the UK for their record on human rights.

The source continued, telling The Sunday Times: “But if this legislation gets onto the statute book and is found to be lawful by our domestic courts, but it is still being held up in Strasbourg, then we know the problem is not our legislation or our courts. If that’s the case, then, of course, he will be willing to reconsider whether being part of the ECHR is in the UK’s long-term interests.”

The reason behind the rumbles…

In 2022, the ECHR put a stop to scheduled flights to Africa under the heavily criticised Rwanda migration partnership. Under the £120m migration partnership scheme, people seeking asylum would be sent to Rwanda where their claim would be assessed. The policy has been condemned by human rights organisations in the UK and internationally.

The courts intervention meant that no flights were able to take off until domestic courts in the UK determined if the policy was lawful. In December 2022, the High Court found the policy to be lawful. However, in January 2023, it said it would allow an appeal against the ruling. The case will now be heard before the Court of Appeal and no flights will be leaving the UK to Rwanda under the scheme until a ruling has been made.

Polling from YouGov has found that 72% of the British public do not agree with the policy. Also, 73% of people said that they were unhappy with how the system was being run.

In January 2023, Rwanda’s president Paul Kagame said: “We cannot keep hosting refugees –  this is not Rwanda’s problem. And we are going to ensure that everybody realises that it is not Rwanda’s problem. I am refusing that Rwanda should carry this burden”.

The United Nations high commissioner for refugees had previously told the high court that Rwanda “lacks irreducible minimum components of an accessible, reliable, fair and efficient asylum system” and that the British policy would lead to a serious risk of breaches of the Refugee Convention.

The ECHR was drafted by the UK
What would leaving the ECHR mean?

The two largest impacts of leaving the ECHR are the end of criminal law cooperation with the EU under the Trade and Cooperation Agreement, and breaching the Good Friday Agreement, which has kept peace in Ireland for over 20 years.

While neither number 10 nor the prime minister has issued a statement saying that there are plans to withdraw from the ECHR, it’s been reported by sources close to Sunak that it is a possibility if his crackdown on English Channel crossings faces legal opposition.

There was backlash from the government against civil liberty groups, campaigners and ‘leftie-lawyers’ who opposed the policy, which has also been condemned by the UN.

Siobhán Mullally, the United Nations special rapporteur on trafficking in persons, has warned that the policy is likely to increase rates of trafficking, not prevent it:

“Transferring asylum seekers to third countries does nothing to prevent or combat human trafficking, in fact it is likely to push desperate people into riskier and more dangerous situations. Rather than reducing trafficking in persons, it is likely to increase risks of exploitation.”

‘Pretty rum company’

While members of the Conservative party have been threatening to pull the UK out of the ECHR time and time again since 2012, some of the loudest criticism has come from former members of the party.

Sir John Major, the former prime minister who served between 1990 and 1997, has warned the British government that leaving the ECHR would put the UK in “pretty rum company”.

Major, who laid the groundwork for a peace deal in Northern Ireland, also warned the government that withdrawing from the ECHR would breach the Good Friday Agreement. Speaking before the Northern Ireland Affairs select committee, Major criticised the government’s so-called Northern Ireland protocol, which oversees post-Brexit trade arrangements in the region. Major called the protocol “poorly negotiated” and “a mess”.

Major stated: “People think [the Council of Europe] is an EU body, so they dislike it. It isn’t. The founding father of it was Churchill and members of his government. It was a British invention.”

Sir Robert Buckland, the former Lord Chancellor who is fiercely opposed to leaving the body, pointed out that the UK’s membership of the convention and its governing Council of Europe were an important part of the underpinning for the 1998 Belfast Good Friday Agreement that ended the Northern Irish troubles.

Troubling times ahead

Jessica Simor KC, visiting professor at LSE and Goldsmiths, stated: “Those who talk of the UK leaving the ECHR in the middle of a war on the Continent are dangerous. They already sought through Brexit, to undermine the greatest peace project the world has ever known. But even now they continue. They need to be stopped and we need to stop them.”

Despite having three serving prime ministers in the last year, the UK’s last general election was in 2019. While there were rumblings of a general election being called early throughout the Covid-19 national lockdowns, the date for the next election is set to take place in January 2025. However, both the 2019 and 2017 general elections were called early.

On 24 March 2022, the government repealed the Fixed-Term Parliaments Act. This means that the king can dissolve the government at the request of the prime minister, which will lead to a general election. As a result, the prime minister can request a dissolution from the king which, if granted, would allow them to call a general election at any time.