Why is Britain still bound to the European Court of Human Rights?

Boris Johnson hints that UK will seek to quit Strasbourg court after it blocks first Rwanda flight

Grounded Rwanda deportation flight at Boscombe Down Air Base
The grounded Rwanda deportation flight at Boscombe Down Air Base
(Image credit: Dan Kitwood/Getty Images)

A ruling from the European Court of Human Rights (ECHR) has grounded the first flight due to take asylum seekers from the UK to Rwanda.

The flight was cancelled minutes before take-off after a late intervention from the Strasbourg court, which said one of the passengers faced “a real risk of irreversible harm” if he remained on the flight.

Home Secretary Priti Patel said she was “disappointed” and “very surprised” at the court’s intervention. Speculation is already mounting that the government may seek to leave the court’s jurisdiction, said The Times.

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Why is the UK still a member despite Brexit?

The ECHR is not an EU institution: the court was created by the Council of Europe in 1950, while the EU’s founding text was not penned until 1957. The Council of Europe has 47 members, compared to the EU which has 27.

Nevertheless, hostility to the ECHR and the EU have often overlapped in the UK. As early as 2006, The Guardian noted that Conservative leader David Cameron had pledged to repeal the Human Rights Act that brought the ECHR into UK law.

However, at the 2017 general election, the Conservative manifesto said that the party would not “repeal or replace the Human Rights Act while the process of Brexit is under way”.

The 2018 Withdrawal Agreement committed the UK to remaining within the ECHR but the Conservatives have always left open the prospect of changing the UK’s relationship with the Court after Brexit and are planning a new Bill of Rights to replace the Human Rights Act.

Will the UK leave?

Boris Johnson hinted last night he might seek to leave the European Convention on Human Rights, which is implemented by the ECHR, to make it easier to remove illegal migrants from the UK.

“The legal world is very good at picking up ways of trying to stop the government from upholding what we think is a sensible law,” said the PM.

Speaking to reporters, he added: “Will it be necessary to change some laws to help us as we go along? It may very well be and all these options are under constant review.”

This would not be a simple process, explains Frederick Cowell on LSE Blogs, because the Withdrawal Agreement “makes it harder for the UK to fully withdraw from the ECHR”. The EU-UK Trade Agreement commits the UK and EU to respecting the ECHR.

However, the hardline Tory Brexiteers of the European Research Group argue that the independent nature of the security provisions means that it is possible – in theory – for the UK to withdraw from the ECHR.

A prolonged debate on the question seems a certainty. Conservative MPs were “fulminating against the ECHR last night”, wrote Stephen Bush in the FT’s Inside Politics newsletter.

“The mutterings about the convention – and Johnson’s hints that the UK’s membership could be reviewed – are a sign of things to come,” wrote Bush, adding that a “big political row over the UK’s continued membership of the convention is near certain to feature as a central dispute for the rest of the year”.

In any such debate, Johnson may not wish to be reminded of the fact that, in 2016, he praised the European Convention on Human Rights and said the UK should stay under its wing.

The Daily Mirror reported that, at a rally in York, Johnson said: “I think it was one of the great things we gave to Europe. It was under Winston Churchill, it was a fine idea in the post-War environment.

“I am not against the European Convention or indeed the Court because it’s very important for us – the judgments of the European Court of Human Rights do not have to be applied either by the UK courts or by the UK Parliament. Keep the European Convention, it’s a fine thing.”

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