Three things are certain in life: death, taxes, and the UK Conservative Government toying with denouncing the European Convention on Human Rights (“ECHR”).[1] In the past the UK has undertaken serious constitutional and legal exercises[2] to improve its interactions between the European Court of Human Rights (“ECtHR”) and manage the domestic interpretations of the ECHR.[3] All of these exercises have proceeded on the assumption that the UK remained party to the ECHR and found that the UK could manage its relationship with the ECHR and achieve more favourable terms through simply modifying the Human Rights Act 1998[4] (“HRA 1998”).[5] It is therefore difficult to comprehend the reasoning behind the past-[6] and present-UK Conservative leaders’ calls to withdraw from the ECHR.[7] Politically speaking there is no explanation; it cannot be said that the UK Conservative party has intentions to emulate Russia and roll back on human rights. Therefore, it is seemingly impossible to produce a meaningful answer as to why a UK Government would denounce the ECHR other than to save on the cost of membership. For that reason, I am using this project purely as a technical desktop exercise to explain exactly how the UK Government can lawfully denounce the ECHR.
This topic produces thought-provoking questions such as how the UK came to reach this point after being intent on ‘bringing ECHR rights home’.[8] Another interesting point which arises concerns the lasting effect on the common law if the HRA 1998 were repealed and the ECHR denounced; seemingly the repercussions would be quite substantive and it is questionable as to which domestic legal instrument would then protect human rights, perhaps a British Bill of Rights?[9] Nevertheless, I will not use this project to go into significant depth on the common law and the impact withdrawing from the ECHR will have on the HRA 1998, nor will I discuss the wider cases against withdrawing from the ECHR which concern the HRA 1998 as this has already been covered by distinguished scholars.[10] I will also omit the technicalities of Brexit and the ECHR as this has also been covered.[11] Evidently, these matters are relatable however, they are not my project. I will explain how the UK Government can lawfully denounce the ECHR.
This dissertation is composed of three themed chapters. Chapter one looks at the substantive and procedural provisions of the ECHR and reveals how the ECtHR will interpret them in accordance with Article 58 of the ECHR,[12] the withdrawal clause. This will be accomplished through the analysis of two cases under the Inter-American Court of Human Rights’ (“IACtHR”) jurisdiction which both involve the interpretation of the American Convention on Human Rights’ (“ACHR”)[13] withdrawal clause, Article 78.[14] Chapter one will also examine Greece’s withdrawal from the ECHR in 1970 and Russia’s in 2022 to demonstrate the important difference between the lawful interpretation of Article 58[15] and the application of it in practice by states which are not consolidated democracies to highlight what should not be done. Chapter two will look specifically at the technicalities of how to withdrawal the ECHR from a UK domestic constitutional law point of view and the issues that may arise. Chapter two therefore provides a technical comparison between two very different but still both important Acts, namely the European Communities Act 1972[16] and the HRA 1998, and discloses the measures to be taken to disengage the HRA 1998 from domestic law to facilitate the withdrawal of the ECHR. I will briefly discuss the 2022 British Bill of Rights Bill (“BBoR”), however at the time of writing it has not received a second reading and with the dissolution of Parliament in a year and eight months, I will not go into great depth as it is too unclear as to what the future of domestic human rights law incorporating the ECHR into UK law might be. For that reason, I will precede on the working assumption that I should marginalise out the BBoR. In the third and final chapter I will cover the legal and political restraints which have the ability to prevent the UK from lawfully denouncing the ECHR. To that end, I will specifically look at the devolution settlements of Scotland, Wales, and Northern Ireland, and the international treaties of the Good Friday Agreement[17] and the EU-UK Trade and Cooperation Agreement.[18] In this final chapter I will explain how to lawfully circumvent a number of the restraints and reveal which of have the ability to preclude the lawful denunciation of the ECHR.
Chapter One
The Vienna Convention on the Law of Treaties[19] (“VCLT”) obligates every party to an international treaty to refrain from acts which would defeat the object and purpose of a treaty[20] and confirms every treaty in force is binding upon the parties to it and must be performed in good faith.[21] As of yet a case specifically concerned with the interpretation of Article 58 ECHR has not come before the ECtHR. There are however cases which have specifically looked at the substantive interpretations of a different human rights convention, and two examples of ECHR state parties who have withdrawn from the ECHR not in accordance with the substantive provisions of the treaty.
The specific objective of chapter one is to demonstrate how the ECtHR would likely interpret Article 58 of the ECHR if a UK Government motions plans to denounce the ECHR. The sections of chapter one are arranged in chronological order. The first section will provide an analysis of the Greek Case to demonstrate withdrawal from the ECHR in practice. Although the Greek Case fails to provide utility for a detailed account of how Article 58 may be interpreted, it demonstrates the difference between interpretation and application, and the wider political and legal context in which withdrawal can occur. It then discusses two cases under the IACtHR’s jurisdiction – whose withdrawal clause functions almost identically to Article 58 – to demonstrate how the substantive provisions of the ACHR will be interpreted when hearing cases concerning issues which arose before the member states’ withdrawal became effective. The first case discussed is Hilaire, Constantine, and Benjamin et al. v Trinidad and Tobago (2002)[22]which specifically deals with the interpretation of authority of provisional measures; the second, Ivcher Bronstein v Peru (1999),[23] is a case which demonstrates the IACtHR’s interpretation of the object and purpose of the ACHR in relation to state behaviour and the substantive element of Article 78 and a case which principles have been applied by other human rights courts.[24] The final section of this chapter discusses the recent withdrawal of the ECHR by Russia which demonstrates member states’ obligation to implement the ECtHR decisions whilst in the withdrawal process. Chapter one therefore sets out the general legal rules and principles of Article 58 which a UK Government intending to denounce the ECHR must follow and apply to lawfully withdrawal from the ECHR.
The Greek Case
On 13 June 1970 Greece famously became the first state to officially denounce the ECHR. The Greek Case, as it later became known, illustrates the denouncement of the ECHR, actioned by a hostile coup d’état to avoid formal expulsion, but not before attempting to use Article 15 to escape an adverse judgment. It also demonstrates the simplicity of a state’s ability to recede the ECHR with a change of Government. One of the first actions taken by the coup d’état when coming into power was the suspension of the ECHR articles which guarantee human rights[25] whilst suppressing the speech and public communication and making mass arrests.[26] In an attempt to legitimise its totalitarianism and restrictions on human rights, the coup d’état informed the Council of Europe Secretary-General of the suspension of human rights and its decision to employ Article 15 of the ECHR – the derogation clause.[27]
This turn of events led the Consultative Assembly to call upon “the Greek authorities to restore democracy and end the “protest against all measures contrary to the ECHR.”[28] Moreover, the Standing Committee of the Assembly encouraged the Governments of the Contracting Parties to the ECHR to refer the Greek case to the European Commission of Human Rights (“ECmHR”).[29] Consequently, the governments of Norway, Sweden, Denmark, and the Netherlands filed applications to the ECmHR, performing their “moral duty to act when the rights of fellow Europeans were being violated”,[30]charging the Greek Government with violating the ECHR and with failing to satisfy the conditions for invoking Article 15. The coup d’état responded by denying the ECmHR’s competence to hear the case and continued to violate human rights, including the impermissible violation of Article 3 of the ECHR. As a consequence, and following the ECmHR’s investigation and report, on 12 December 1969 the Committee of Ministers met to decide the appropriate action against Greece for its violations of the ECHR. However, by this time mainstream media had made the Greek situation public and provoked public opinion [31] which subsequently caused an international political problem being fought out on the “diplomatic and political level.”[32] It was therefore evident to the coup d’état that political and public pressure would influence the voting of the Ministers[33] and knowing that it faced the threat of expulsion for infringement of human rights, employed Article 58 of the ECHR, and Greece ceased to be a member of the ECHR with effect from 13 June 1970. Tyagi claims that the denunciation was a challenge to the “moral foundation of a progressively united Europe.”[34]
From the outset of the Greek Case, there had been opposing views concerning how to best deal with the non-compliance with the ECHR. [35] Some were of the opinion that the coup d’état could not be appeased, and to preserve the integrity of the ECHR and respect for human rights the state had to be expelled. The opposing point of view can be likened to the phrase ‘keep your friends close and your enemies closer’; in allowing Greece to remain the ECmHR and ECtHR could keep control and influence over the state.[36] Becket suggest that behind this concept there was an assumption that continual political pressure could restore liberalisation in Greece.[37] Becket also argues that the Greek Case demonstrates the mechanisms of the ECHR are effective from the “first stage of application, through investigation, through submission of a Report, to the final step of the sanction of the publication of the Report.”[38] Furthermore, he notes the ECmHR has “shaped an area of judicial reason out of a situation dominated by polemic and power politics.”[39] However, from an operation point of view, it is evident that the ECHR cannot survive a situation such as the Greek Case. When push comes to shove, the mechanisms of the ECHR cannot protect the basic human rights of individuals who are at the mercy of a dictatorship with blatant disregard for the system.
Following the overthrowing of the coup d’état in 1974, Greece was readmitted to the Council of Europe and re-ratified the ECHR. Although it is unlikely that a UK Government would denounce the ECHR in such an immoral and illegal way, it demonstrates that employing Article 15 to evade treaty obligations is unwarranted and also that a successive UK Government can re-ratify the ECHR quite easily.
The American Convention on Human Rights
The ACHR, also known as the Pact of San José, is an international human rights treaty akin to the ECHR. The Inter-American Commission on Human Rights (IACmHR), like the ECmHR, possesses the right to investigate possible human rights violations and may file a petition for review with the IACtHR.[40] The IACtHR, like the ECtHR, settles human rights cases and provides a binding decision under its contentious jurisdiction.[41] If a member state fails to comply with the rules of the ACHR then the IACtHR has the authority to intervene.[42] The ACHR’s Article 78 withdrawal provision is constructed in similar terms to Article 58 of the ECHR, although one-years notice is required before denunciation will become effective.
As noted, Hilaire, Constantine, and Benjamin et al. v Trinidad and Tobago (“Hilaire”)[43] is important for interpreting the authority of provisional measures whilst withdrawal is pending. The relevant facts of the case are as follows: following the IACmHR investigation into Hilaire v Trinidad and Tobago[44] it was found that the Government of Trinidad and Tobago (“the Government”) had violated various rights protected by the ACHR.[45] The IACmHR consequently petitioned for the IACtHR to adjudicate cases involving thirty-two prisoners awaiting execution;[46] the Government reacted by withdrawing its ratification of the ACHR.[47] One day prior to the date of effective denunciation the IACmHR filed a petition with the IACtHR concerning the 32 prisoners,[48] and this became Hilaire.[49]
Whilst the individual petitions were in review, the IACtHR ordered the Government to refrain from executing the prisoners in question. However, the Government refused and executed at least three.[50] The Government sought to defend its actions by asserting that the IACtHR lacked authority to hear cases,[51] further alleging it had made a reservation to the compulsory jurisdiction of the IACtHR and if the reservation to the IACtHR’s jurisdiction was considered invalid, then its declaration of adherence to the ACHR was invalid, and therefore, it had never recognised the jurisdiction of the IACtHR.[52] The IACtHR rejected the Government’s claim owing to the fact that the alleged reservation was “incompatible with the object and purpose”[53] of the ACHR. The IACtHR’s subsequently ordered retrials for the remaining prisoners before any more were executed.[54] However, once again, the Government failed to comply with the IACtHR’s ruling. As Article 78 of the ACHR functions almost identically to Article 58 of the ECHR, the UK Government can look to Hilaire to establish how the ECtHR will more than likely interpret the terms of the withdrawal clause, especially in relation to the authority of provisional measures whilst withdrawal is pending.
Ivcher Bronstein v Peru (“Bronstein”) is important for interpreting the substantive element of Article 78 and object and purpose of the ACHR in relation to state behaviour. The relevant facts of the case are as follows: on July 13, 1997, Peru arbitrarily deprived Bronstein of his nationality title to restrict his freedom of expression. Consequently, the IACmHR opened a case relating to the matter and subsequently gave Peru a period of time to adopt measures necessary to fulfil its recommendations.[55] Peru nevertheless failed to adopt the measures; therefore, on 31 March 1999 the IACtHR took control of the Bronstein case.[56] However, on August 4, 1999, the Minister and Counsellor of Peru’s Embassy gave notice of Peru’s decision to withdraw from the IACtHR’s contentious jurisdiction to take effect retrospectively from July 9, 1999. The notice also stated that “the IACtHR is no longer competent to consider the [Bronstein] case, or any other cases in which the State has not answered the application filed with the IACtHR, under the contentious jurisdiction provided for in the ACHR.”[57] Although seemingly evident that Peru’s decision to withdraw from the IACtHR’s jurisdiction was caused by its desire to restrict Bronstein’s freedom of expression, Peru gave several other non-related reasons for its decision.[58] Nevertheless, the IACtHR found that once a state ratifies the ACHR and accepts the compulsory jurisdiction of the IACtHR, the state formally recognises its jurisdiction as binding, ipso facto;[59] it is an “ironclad”[60] clause. Peru had accepted the compulsory jurisdiction in 1978 and therefore could not return to the status quo ante;[61] it could either be bound by both the ACHR and the jurisdiction of the IACtHR or neither. Consequently, Bronstein was still very much under the IACtHR’s jurisdiction.
The IACtHR also affirmed the object and purpose of the ACHR is to guarantee the personal liberty and social justice based on respect for the essential rights of man. Consequently, Peru was obligated to act in a manner that does not suppress the “exercise of the rights and freedoms recognised in the ACHR, as it would be contrary to its object and purpose and deprive beneficiaries of the additional guarantee of protection of their human rights that the ACHR’s jurisdictional body affords.”[62] Conclusively, the IACtHR held that if Peru wanted to modify its legal obligations it was required to denounce the entire ACHR, however it could not withdraw its acceptance. In other words, Peru needed to denounce the entire ACHR to disengage itself from the IACtHR’s binding contentious jurisdiction. But still, denunciation takes effect only when performed in accordance with Article 78 of the ACHR and with the notice period of one year. To that end, a UK Government with intentions to denounce the ECHR can count on the ECtHR to ensure the substantive element of Article 58 are performed in accordance with the treaty’s object and purpose, namely, to protect the rule of law, human rights and guarantees and promote democracy.[63]
Russia
Regardless of the fact it was engaged in an armed conflict in Chechnya at the time, Russia became a full member of the Council of Europe on 28 February 1996 and ratified the ECHR two years later. Being an instrumental instigator of the second Chechen War of 1999,[64] Vladimir Putin became President of the Russian Federation in 2001. Putin is now President of Russia and to say he is an advocate of the protection of human rights would be fundamentally untrue. For years Russians have regularly faced violations of their constitutional rights and for years Russia has failed to comply with its obligations to the ECHR. [65] What is more, Russia has regularly ignored ECtHR judgments which has consequently produced a huge number of unimplemented decisions. [66] Ironically though, throughout his presidencies Putin has asserted the Kremlin “constantly advocate the supremacy of international law, and respect sovereignty and non-interference in internal affairs of other countries.” [67] With that in mind, the final section of this chapter analyses Russia’s withdrawal of the ECHR and illustrates a state’s obligation under international law to implement ECtHR decisions whilst in the withdrawal process. Specifically, this section discusses Russia’s pattern of non-compliance with the Council of Europe, its suspension from the Counsel of Europe following actions in Ukraine in 2014, and its decision to withdraw the ECHR.
Russia’s relationship with the ECHR may have ended in 2022, but its blatant disregard for the ECHR system and non-compliance with ECtHR’s rulings have a longstanding history.[68] From 1994 to 2000, Russia waged two wars against Chechnya; in both wars, Russia heavily bombed Chechnya, “causing over 200,000 civilian deaths”.[69] The ECHR judgments in the Chechen cases illustrate the start of Russia’s “deliberate strategy of non-cooperation with the ECtHR and ECHR.”[70] What is more, since the ECtHR began permitting complaints against Russia, the ECtHR has consistently ruled against it in almost every case; it has been found liable for violations on: protection of life, prohibition against torture and inhuman treatment, and others.[71] Unsurprisingly, the state came close to expulsion in 2000,[72] however, its voting rights were instead suspended until 2002.[73] Russia has fulfilled the ECtHR judgments that call for ‘just satisfaction’.[74] However, non-compliance has been pervasive throughout judgements that call for restitutio in integrum.[75] As achieving restitutio in integrum can require the respondent states to re-open cases and implement an unenforced domestic judgment,[76] in 2000, the Committee of Ministers of the Council of Europe adopted a Resolution which called for Russia to re-open cases of which the ECtHR has found violations of the ECHR.[77] Russia however refused to prioritise ECtHR judgments over its own and declared it had a right to objection in cases where an interpretation given to the ECHR by the ECtHR violated the Russian Constitution.[78] To that end, in Anchugov and Gladkov [2013][79] a case where the ECtHR found the blanket ban on convicted prisoners’ voting rights enshrined in the Russian Constitution was incompatible with the ECHR,[80] the Russian Constitutional Court (“RCC”) refused to interpret the provision differently.[81] Similarly, in the Yukos v Russia [2014],[82] the RCC found that the ECtHR’s judgment on just satisfaction was contrary to the Convention as it undermined Russian sovereignty. As mentioned, Putin and the RCC have clearly stated that international law is supreme and so this ruling appears to be rather contradictory. [83] The RCC also ruled that the domestic courts which did re-opened proceedings were exempt from this rule and could ignore ECtHR judgments altogether.[84] The consequence being that, despite succeeding before the ECtHR, the majority of claimants would lose in their re-opened cases before domestic courts.
In February 2014, Russia, in violation of another state party’s territorial integrity, annexed Crimea and precipitated a conflict in Donbass, Ukraine which claimed thousands of lives. [85] As a consequence, PACE suspended the right to vote of members of the Russian parliamentary delegation. After its voting rights were denied in 2015, Russia chose to boycott PACE[86] and attempted to dictate the terms of its restoration by stating it will return only when its voting rights restored.[87] PACE however did not respond; consequently, in 2017-18 Russia declined to pay the remainder of the year’s contribution to the Council of Europe’s budget unless it was assured by the Assembly that it could “never be stripped of its voting rights again.”[88] However, after Russia eventually paid down some of its debt, [89] the Assembly ‘bent’ its Rules of Procedure,[90]and returned Russia’s PACE delegation.[91] The then-Prime Minster, Volodymyr Groysman, condemned Russia’s return to PACE and held it to be “an utter display of contempt for international law. Deaths and broken lives at Donbas, annexation of Crimea – these are the things one can’t neglect for the sake of temporary agreements.” Perhaps the Council of Europe should have taken note of Groysman’s outcry, as although Russia may have contributed what it owed financially, it continued to avoid its obligations under the ECHR.
In March 2021, Russia began amassing thousands of personnel and military equipment near its border to Ukraine and in Crimea.[92] On February 23rd, 2022, the Federation Council of Russia authorised the use of military force and Russian soldiers began entering Ukraine’s territory. The next day Russia invaded Ukraine. Despite numerous Resolutions condemning the invasion, demanding a full withdrawal of Russian forces,[93][94] and a suspension from the Council of Europe,[95] Russia failed to comply. As a result, on March 16th, 2022, the Russian Federation was expelled from the Council of Europe with immediate effect. This however raised concerns as to whether its membership to the ECHR would also terminate with immediate effect. Article 58(3) of the ECHR was central to the concern; it stipulates that “Any Party which shall cease to be a member of the [CE] shall cease to be a Party to this Convention under the same conditions.”[96] Nevertheless, it was interpreted to mean under the same conditions of Article 58 rather than the conditions of expulsion. Therefore, the ECtHR applied the six-month transition period of Article 58(1)[97] and maintained the overriding authority to deal with applications directed against Russia in relation to alleged violations which occurred until 16 September 2022.[98]
As a result of Russia’s continuous non-compliance with the ECHR, the vast number of 17,450 applications were pending against Russia prior to its effective date of withdrawal. However, it seems highly unlikely the ECtHR’s judgments will be implemented given that even when party to the ECHR, its record of executing judgments was very limited.[99] Although the ECtHR is fully aware of Russia’s long history of non-compliance it did not deter individuals from filing applications until 16 September 2022. But does this mean that the ECtHR judgments are essentially symbolic? Until it can be demonstrated that state parties actually recognise the sovereignty of international law and actually engage with the ECtHR’s judgments, it cannot be said that the ECHR is anything than a moral guideline and the ECtHR’s judgments anything but symbolic. Nevertheless, the Russia ordeal demonstrates that state parties must recognise the sovereignty of the ECHR and implement the judgments of the ECtHR concerning the cases which were under its jurisdiction until the effective date of withdrawal.
Prior to the analysis of the south American cases, it was difficult to make predictions about how the ECHR would interpret the substantive and procedural provisions of the ECHR in accordance with Article 58. The most important and obvious findings from chapter one are that it is expected that the ECtHR will interpret Article 58 in a way that obligates the UK Government to preserve the substantive and procedural rights of the beneficiaries of the ECHR pending the decisions on merits of all cases which have come to be under the ECtHR’s jurisdiction.[100] Additionally, the UK Government can expect the ECtHR to interpret the substantive provisions of the ECHR and Article 58 in accordance with the object and purpose of the treaty.[101] To that end, the UK Government will find that it cannot violate any of the procedural clauses before the denouncement has become effective nor violate beneficiaries of the ECHR whilst their cases are under the ECtHR’s jurisdiction.[102] It is inconceivable that the UK would withdraw from the ECHR in a similar fashion to Greece or Russia as at the time both states were not consolidated democracies, and it was a far from democratic decision to leave. Nevertheless, with thanks to their examples, a UK Government intending to denounce the ECHR now has a blueprint of an incorrect application of the withdrawal process and understand it remains obligated to implement the decisions of the ECtHR of all cases under its jurisdiction.
Chapter Two
“It would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament as expressed in a statute…”[103]
Under the foreign affairs prerogative the UK Government can negotiate, sign, and withdraw from all international treaties which involve the UK.[104] However, as demonstrated by the UK’s proposed use of the prerogative to withdraw from the Treaty of the European Union (“TEU”) in R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] (Miller (No.1)),[105] there are instances where such intended use of the prerogative is unlawful. Therefore, if the UK Government decides to withdraw from the ECHR, as a result of the legal uncertainty around the prerogative and the absence of a template which demonstrates a democratic state performing the technical constitutional aspects of the denunciation, the UK Government will likely have an uncertain route to withdrawal and be faced with complexities.
The main body of this chapter explains the technicalities which are involved in the withdrawal of the ECHR from a domestic constitutional law perspective and highlights the issues that could defeat the denunciation. It provides an analysis of the Miller (No.1) judgment and the important cases which followed to illustrate the two main approaches to denouncing the ECHR. Additionally, it demonstrates how the UK Government can avoid political conflict and opposition from pro-ECHR parties. Thus, chapter 2 provides the UK Government with a practical guide to withdrawing from the ECHR. In the short time since the EU referendum in 2016, Eurosceptic parties in Poland have continuously made threats to exit the EU;[106] likewise, Hungary’s withdrawal is imminent under the current far-right Prime Minister’s reign.[107] Fortunately, Brexit has provided Poland and Hungary with a ‘how to negotiate the withdrawal of the Treaty of the European Union’ (“TEU”) guide. Unfortunately, if the UK Government chooses to denounce the ECHR, it will have to rely on the IACtHR’s interpretation of Article 78 to guide it through the process. However, under this framework, parties to the ECHR will enjoy a comprehensive understanding of the legalities and technicalities involved in executing a denunciation of the ECHR.
The main methods to denounce a treaty: R (on the application of Miller) v Secretary of State for Exiting the European Union
Above all, Miller (No.1) demonstrates Parliamentary sovereignty ranking higher than the prerogative. The facts of the case are simple; following the EU referendum and the announcement of the UK Government’s intended use of the prerogative to activate Article 50 of the TEU, Miller sought to bring an action for judicial review, asserting that the Government alone did not possess the right to withdraw from TEU. In the majority judgment, the Supreme Court set out two features of the UK constitutional arrangements: “The first is that ministers generally enjoy a power to freely terminate treaties without recourse to Parliament. Secondly, ministers are not normally entitled to exercise any power they might otherwise have if it results in a change in UK domestic law unless an Act of Parliament so provides.”[108] However, as the UK had incorporated EU law into its domestic legal order by enacting the European Communities Act 1972 (“ECA”),[109] the Supreme Court found that the prerogative could not be employed to withdraw from the TEU as it would create a significant constitutional change which requires the consent of Parliament. However, whilst Miller may have won the battle, she eventually lost the war; following the Miller (No.1) judgment, the European Union (Notification of Withdrawal) Act 2017[110] was enacted which gave the UK Government express authorisation to withdraw from the TEU.
So, what does Miller (No.1) mean for the UK Government if it decides to withdraw from the ECHR? Well, it depends on whether the Supreme Court would take an orthodox or bifurcation interpretation of the Human Rights Act 1998 (“HRA”).[111] The contrast between the interpretations has long been a question of great interest. The latter reads provisions of the HRA independently of one another and suggests that the HRA merely gives reference to ECHR rights. It therefore provides the UK Government with the ability to denounce the ECHR by the prerogative rather than an Act of Parliament. This is demonstrated when reading ‘Convention Rights’ under section 1(3) HRA[112] separately from ‘Convention’ under section 21(1) HRA;[113] evidently, this creates two separate terms which operate as two distinct aspects of the basic architectures of the HRA.[114] In further support of the separate reading, ‘Convention Rights’ and ‘Convention’ are not adjacent and under ‘Convention Rights’ it is confirmed that the ‘Articles’ viz human rights are set out in Schedule 1 of the HRA, not the ECHR.[115] Compare this to the orthodox interpretation, which promotes the idea that Parliament has not given Schedule 1 HRA any legal effect whatsoever; Young and Philipson argue that an interpretation of the HRA which does not assume Parliament to have done so is “surely preferable”.[116] Therefore, this suggests that the rights contained in the HRA are comparable to ECHR rights and freedoms, but are not the rights and freedoms. To that effect, with a bifurcation interpretation of the HRA, the UK Government could withdrawal of the ECHR by the prerogative as it would not create a significant constitutional change.
The House of Lords has at times shown support for the bifurcation interpretation. In Re McKerr (AP) (Respondent) (Northern Ireland) [2004] (“McKerr”)[117] the court was asked whether Section 6 of the HRA[118] applied to a violation of Article 2 of the ECHR[119] which occurred pre-HRA; ultimately, it did not. The judgment may be useful for a UK Government seeking to denounce the ECHR as Lord Nicholls of Birkenhead affirmed that “the HRA has not created a continuing existence of a right arising under the ECHR […] nor does the ECHR form part of UK law or is mirrored by a corresponding right created by the HRA.”[120] Three years later in Al-Skeini v SSD [2007] (“Al-Skeini”), Lord Bingham of Cornhill clarified Lord Nicholls’ argument to further demonstrate the logic of the bifurcation interpretation. Lord Bingham affirmed the HRA was enacted to give domestic legal effect to the ECHR, which could have been achieved through the incorporation of some or all of the ECHR rights into domestic law, but it was not.[121] Instead, he found that the HRA gave effect to ECHR rights merely through the horizontal effect allowed by Section 6(1) of the HRA.[122]
The effectiveness of section 6 of the HRA giving domestic effect to the ECHR is also exemplified in the ‘Government’s Independent Review of the HRA’.[123] The Review confirmed that rights were ‘bought home’ solely by six sections of the HRA. Section 2,[124] ensuring courts ‘take into account’ the ECtHR judgments and decisions; Sections 3[125] and 4,[126] interpreting legislation compatibly with ECHR rights and making declarations of incompatibility when impossible; Section 6, requiring public authorities to act compatibly with ECHR rights; and Sections 7[127] and 8,[128] providing individuals the right to bring proceedings and obtain remedies in domestic courts. The review does not affirm or imply that Schedule 1 HRA which sets out the ECHR rights incorporates ECHR rights into domestic legislation. Therefore, considering Lord Nicholls’ and Bingham’s position on the matter and the Government’s Independent Review of the HRA, it is apparent that if the UK Government were taken to the Supreme Court as a result of a UK minister’s intention to denounce the ECHR by use of the prerogative, it is not entirely implausible that the Court will favour the bifurcation interpretation and find that the UK Government is not guilty of creating a significant constitutional change.
However, the bifurcation interpretation is controversial and goes against the orthodox understanding of the HRA. The orthodox interpretation provides that rights and freedoms of the ECHR flow directly through the ‘conduit-pipe’ of the HRA into UK’s domestic legal order[129] and favours the notion that ECHR rights under the HRA are dependent on the definition the HRA gives to the ‘Convention’. This is evidenced when ‘Convention Rights’ under Section 1(1)[130] and the ‘Convention’ under s.21(1) are read together. This reading provides that ‘Convention Rights’ are the ‘rights set out in relevant Articles of the ECHR’.[131][132] The ‘Convention’ states that ‘the Convention’ means ‘the Convention for the Protection of Human Rights […] agreed by the CE […].[133] Young and Philipson also suggest that the orthodox interpretation recognises that Schedule 1 is otiose however Parliament intended for it to prevent the reader having to look up the relevant ECHR rights, “providing clarity but having no further legal effect.”[134] Interestingly, albeit before Al-Skeini, Lord Bingham has also affirmed that where legislation is capable of multiple interpretations courts are likely to presume that Parliament intended to legislate in conformity with the treaty in question.[135] Therefore, the UK Government should anticipate a judgment which favours the orthodox interpretation and be prepared to forgo the prerogative in favour of an Act of Parliament to denounce the ECHR.
How to draft an Act of Parliament to lawfully withdraw from a treaty: Factortame (No.2) and Thoburn v Sunderland City Council
The UK judiciary has demonstrated – pre-Brexit at least – that where an Act of Parliament includes international law, such international law is sovereign. [136] In Factortame (No.2),[137]the House of Lords found that the Merchant Shipping Act 1988 (“MSA”)[138] implied the repeal of an EU law which had already been incorporated into UK law by the ECA; it consequently held that that the MSA must be disapplied. Later in Thoburn v Sunderland City Council [2002] (“Thoburn”),[139] where the Units of Measurements Regulations 1994[140] implied the repeal of section 2(2) of the ECA,[141] the judiciary refined the Factortame principle and introduced the term ‘constitutional statues’. A constitutional statue is one that “conditions the legal relationship between citizen and state, or enlarges or diminishes the scope of fundamental constitutional rights”[142] and can be repealed or amended only with express language in a subsequent Act or where the intention of parliament to alter or repeal earlier legislation is absolutely incontestable.[143] Importantly, Thorburn confirms the HRA is a constitutional statute.[144]
However, the Supreme Court chose not to engage with the concept ‘constitutional statutes’ or display enthusiasm towards it even when provided the opportunity in Allister & Peeples, Re Applications for Judicial Reviews (Northern Ireland) [2023] (“Allister”).[145] The relevant facts of the case are simple: the appellants submitted the Acts of Union 1800[146] are constitutional statues and that rights specified were fundamental rights so that there was no scope for implied repeal and by analogy no scope for implied subjugation or modification. Although the Court affirmed that the principle of legality – the interpretative presumption that Parliament does not intend to violate fundamental rights – cannot override the clearly expressed will of Parliament,[147] it explicitly refused to engage with the ‘constitutional statues’ concept, regarding it as purely ‘academic’.[148] As the constitutional status of Northern Ireland had remained intact by the virtue of statutes which effected withdrawal from the EU,[149] the appellants submission based on constitutional principles failed. Evidently, Allister demonstrates the Court’s total disregard of the concept of ‘constitutional statues’. However, it does not concern implied repeal therefore the Thoburn principle cannot be deemed legally redundant. To that, Green believes that the real litmus test for whether the nuances of Parliamentary sovereignty in the UK still holds may arise in future cases.[150] Perhaps the BBoR which aims to repeal and replace the HRA and implies the repeal of the ECHR, and Illegal Migrants Bill, which chips into specific ECHR rights (and shall be discussed in Chapter 3) may provide the answer.
As drafted, the BBoR contains express words to repeal the HRA. It also to protects the UK’s membership to the ECHR, retains all the ECHR rights, and protects said rights’ weight in domestic courts; the provisions are also supposedly compatible with ECHR rights.[151] The reason the BBoR can be said to also imply the repeal of ECHR rights is due to the combined effect of Section 36(1)[152] and Schedule 1 of the BBoR.[153] Under Section 36(1) the ‘ECHR’ for the purpose of the BBoR means the “Convention for the Protection of Human Rights […], agreed by the CE”;[154] however, the ‘ECHR’ is expressly excluded from Schedule 1, which contains the substantive human rights based on Articles 2-14 of the ECHR.[155] With less than two-years of Parliament before it is dissolved on December 17, 2024, there is a chance that with arrival of a new government in 2025, the BBoR could be scrapped before the Monarch can provide its formal approval. The fact that the BoRB has previously been scrapped due to its widespread criticism as well as the current Prime Minister’s refusal to commit to a parliamentary timetable for bringing the BBoR into law[156] does not bode well for its future. Nor does it suggest that another which replicates its intention or provisions will have success.
Nevertheless, in the hypothetical scenario where the BBoR or legislation to that effect, came into force tomorrow, or the UK had denounced the ECHR and was outside its 6-month withdrawal clause period, the UK courts would no longer be required to ‘take into account’ ECtHR decisions. Instead, they will be free to follow procedural rules set by the UK’s common law and domestic legislation. Interestingly, research conducted by The Law Society suggests that the BBoR and akin legislation would reduce the level of protection given to human rights.[157] This raises two separate questions; firstly, as the HRA became the fundamental protector of human rights after its enactment,[158] is the common law a sufficient protector of human rights? Secondly, have ECHR rights become entrenched in UK common law due to the horizontal effect? To ascertain the answer to the former, the nature of, and relationship between, the common law and the HRA should be analysed.
The common law and the HRA are individual systems for the protection of human rights.[159] However, after the HRA was introduced Lord Neuberger stated, “the use of the common law as the protector of human rights was frequently overlooked.”[160] Similarly, Dickson argues that top judges have resisted the use of the common law to protect human rights and instead relied on the HRA.[161] This suggest that ECHR rights are the prominent protector of human rights in the UK. However, the distinctiveness of the common law and ECHR rights has routinely been acknowledged by the courts. For example, in agreement with Lord Goff in AG v Guardian Newspapers Ltd (No 2) [1990],[162]Lord Keithin DCC v Times Newspapers [1993][163]affirmed that “in the field of freedom of speech there is no difference in principle between English law and Article 10 ECHR.”[164] Likewise, in Leech No.2[165] the Court found that there was an interference with the citizen’s constitutional rights in respect of correspondence, which were held to be “vested common law rights”[166] – the domestic version of “Article 8 rights.”[167] Even after the HRA came into force, courts continued to protect human rights with use of the common law; in UNISON [2015],[168] the Supreme Court expressly recognised that “the right of access to justice (protected by Article 6 of the HRA) is not an idea recently imported from the ECHR, but has long been embedded in our constitutional law.”[169] Perhaps most importantly in Osborne v The Parole Board [2013],[170] Lord Reed affirmed that the HRA “does not replace the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the ECtHR.”[171] Lord Reed’s assertion evidences that common law and HRA run parallel and complement one another; the HRA is not the one and only protector of human rights.
Elliot however argues that whilst the common law is a protector of some rights, judges have “tended to protect only a narrow core of such rights.”[172] If his statement holds weight, when dealing with cases where a right is unprotected by the common law, the court must work by analogy and look for coherence, “by assessing how far possible the ruling would be consistent with existing legal rules.”[173] But ‘existing legal rules’ under the common law could be contrary to human rights as we know them. For example, if private life had not been protected by Leech (No.2), and a violation of private life had been called into question, would the court be forced to follow, for example, Malone v MPC [1979][174] where tapping of a person’s telephone was not unlawful under English law? The answer to this predicament may be answered by the second question of, have ECHR rights become entrenched in UK common law due to the horizontal effect?
Theoretically, with the enactment of legislation to withdraw from the HRA, procedural law founded on the basis of ECHR rights will become outdated and courts will be required to follow English law and procedural rules such as the aforementioned case law which protects ‘common law rights’. However, removing ECHR rights is easier said than done as since the HRA came into force, judgments made by all UK courts and tribunals were required to be compatible with ECHR rights;[175] this has been dubbed the horizontal effect. Therefore, practically, elements of the ECHR will exist in all judgments (except in cases of declarations of incompatibility) made from October 2000 to the withdrawal of the ECHR. Does this therefore mean that 23-years’ worth of case law must be retracted? On the degree of probabilities this is highly unlikely, bordering impossible. Therefore, it can be said with confidence that ECHR rights will linger within the common law even when the UK departs from the ECHR. To this, judges will likely still apply existing ECHR principles to novel cases. However, this raises a third question; is it really worth departing from the ECHR if the rights continue to exist within the judiciary? This dissertation should enable you to come to that decision.
The combined effect of the Miller (No.1) judgment with the principles established in McKerr, Al-Skeini, Factortame (No.1) and Thoburn suggest that there will be a requirement to enact an Act of Parliament which explicitly repeals the HRA for the UK Government to satisfy the technicalities involved in activating Article 58 to denounce the ECHR. That being the case, a UK Government must complete the following three steps to successfully denounce the UK. (1) The Secretary of State, currently Suella Braverman, must express that the UK Government shall issue a notice under Article 58.[176] (2) UK Parliament must enact a secondary Act of Parliament which explicitly repeals the HRA 1998; this is viable with use of express words or “words so specific that the inference of an actual determination to effect the result contended for was irresistible.”[177] (3) The repealing Act must include guidance on the rules of interpretation of common law rights using ECHR law; this can be somewhat demonstrated by ‘Section 26: Interpretation of retained EU law and relevant separation agreement law’[178] of the EUWA 2020 Explanatory Notes and Clause 3: Interpretation of the Convention rights in the BBoR[179]; nevertheless, the said provisions of the BBoR lack clarity and nor does the Bill serve repeal the HRA.
However, on a narrow and bifurcation reading of the HRA 1998 and the assumption that Schedule 1 of the HRA 1998 does not incorporate ECHR rights into UK domestic law, it could be entirely possible to denounce the ECHR and keep the HRA 1998 thus avoiding a significant constitutional change. This can be achieved by: (1) denounce the ECHR to remove the rights incorporated into domestic law via schedule 1 of the HRA 1998; (2) modify Section 2 of the HRA 1998 so that it provides somewhat of an obscure and ambiguous direction on how to interpret the ECHR; (3) insert an interpretive schedule at the end of the HRA 1998 on how it is to be used post-withdrawal. Evidently, this is also consistent with McKerr and Al-Skeini. Through this method, the Government are able to, for example, avoid Rule 39 orders from the ECtHR (which it was unable to do in 2022 when intending to send asylum seekers from the UK to Rwanda) whilst, preserving, for example, Article 8 rights in relation to private law dispute in nuisance or treatment in relation to care home. Therefore, not only is this theoretically plausible, but providing that the motives for denouncing the ECHR are sovereignty-based arguments rather than intentions to push back human rights, it is also politically possible and preferable to today’s Conservative party.
Chapter Three
The purpose of chapter three is to provide an assessment on the constraints which could preclude the UK Government denouncing the ECHR and consequently provide the UK Government with an understanding of whether or not such constraints are worth violating or terminating in order to proceed with the denunciation. The main issues addressed are the devolution settlements of Scotland and Wales; the Good Friday Agreement (“GFA”)[180] – a peace treaty; and the EU-UK Trade and Cooperation Agreement (“TCA or Agreement”) – also a treaty.[181] The politics around the GFA and TCA are particularly interesting and relevant as in March 2023, Prime Minister Sunak formalised a deal with the EU which implies that the continuation of the ECHR is protected by the GFA, whilst proceeding to enact a Bill which effects the TCA and “rip up the UK’s long-standing commitment to the [ECHR].[182]
Devolution Settlements
In the UK, the Government has devolved powers to the Scottish Parliament, the National Assembly for Wales (“NAW”), and Northern Ireland Assembly (“NIA”).[183] Devolved powers are atransfer of power by a central government to local or regional administrations. Devolved powers should not be confused with reserved powers; reserved powers remain at UK Parliament level.[184] In Wales, the NAW possesses the devolved power to legislate on most matters. Foreign Affairs matters are reserved powers held by the UK Government; however, obligations under the ECHR remain with the NAW.[185] This is the same for Scotland, where the Scottish Parliament must comply with the ECHR owing to the fact that ECHR rights are written into the Scotland Act 1998 (“SA 1998”).[186] Similarly, in NI, legislative measures of the NIA and executive acts of the Northern Ireland Executive must follow the ECHR;[187] and the HRA “cannot be modified by an Act of the Assembly or subordinate legislation made, confirmed or approved by a Minister or Northern Ireland department.”[188] Legislations enacted by any of the three regions which is incompatible with ECHR rights are simply void ab initio.[189][190][191] To that, the three devolved regions have a different relationship with the ECHR than the UK Government; the ECHR is in the devolved regions constitutional DNA.[192]
As this section will demonstrate, it is technically possible to keep the ECHR as a framework for the devolved regions constitution; however, withdrawal from the ECHR, thus the ECtHR supervision, would likely cause uncertainty amongst the respective judiciaries where cases concerning ‘compliance’ with the ECHR are to be assessed and in situations where interpretations by the ECtHR should be ‘taken into account’. Donald et al’s extensive research on this subject demonstrates that to avoid this uncertainty and retain control over the UK, the UK Government must remove the ECHR rights from the devolved regions’ devolution settlements.[193] However, this means the repeal of the HRA, which Professor McCrudden has stressed will jeopardise destabilising the GFA[194] and furthermore there could also be a violation of the Sewel Convention which could cause geopolitical tensions between the UK Government and all three of the devolved regions.
The Sewel Convention (“Convention”) enables UK parliament to pass legislation for all parts of the UK, including in relation to devolved policy areas.[195] Normally the UK Government must obtain a legislative consent motion (“LCM”) before it can legislate on a devolved matter; however, the Convention is not considered legally binding.[196]The overriding of the Convention can be demonstrated by Scotland’s refusal to provide an LCM for the enactment for the European Union Withdrawal Act 2017 (“EUWA”).[197] The sequence of events which allowed the UK Government to enact the EUWA are as follows: the EUWA was introduced as a Bill which sought to make significant changes to the legislative competencies of devolved institutions. It was opposed by the Scottish Government (as well as others), and the region introduced the EU ‘Continuity Bill’ (“Bill”), to take effect if an agreement could not be reached for an UK-wide EUWA Bill. The UK Government reacted by calling its competence into question and referred the Bill to the Supreme Court under a devolution reference. Whilst the Bill was found to be largely within competence, the effect of the EUWA came into force before it received Royal Assent which meant that it had constrained the Scottish Parliament’s competence at the point the Court considered the case. The enactment of the EUWA without an LMC has been defended by the Government to protect Scotland’s trade with the rest of the UK.[198] However, as the UK Government had asked for the consent of the Scottish Parliament at multiple stages before finally deciding to legislate,[199] it seems evident that it felt obliged to obtain an LCM until the Scottish Parliament made its final decision to refuse consent.
The lessons to be taken from this sequence of events can be applied to the scenario where a devolved region rejects the proposed repeal of the HRA. Evidently, in that scenario it would be legally possible for the UK Government to react to a devolved region’s HRA Continuity Bill by making a devolution reference to the Supreme Court, and consequently work with UK Parliament to amend the devolution settlement so as to render the Bill invalid. As a result, the devolved regions would be obliged to obey the provision of the updated devolution settlement. Evidently, this could be an act of bad faith; therefore, if required to again legislate on devolved matters without an LCM, it will have to decide whether denouncing the ECHR is worth producing an act which could be taken as an act of bad faith and the political uproar which could follow.
The GFA not only underpins the NI devolution settlement[200] but importantly is also an international peace treaty protected by the customary international law of treaties[201] and must be interpreted in good faith as per the VCLT.[202] The GFA placed a renewed emphasis on human rights as it put an end to a violent sectarian conflict in NI where 3,720 people were killed[203] and approximately 47,541 injured;[204] most of whom were innocent civilians.[205] During the GRA negotiations the UK Government committed itself to “provide NI with direct access to the ECtHR and remedies for breach of the ECHR including power for the courts to overrule Assembly legislation on grounds of inconsistency.”[206] The enactment of the HRA was responsible for the incorporation,[207] which means that the GRA requires the HRA to remain effective to provide NI direct access to the ECtHR.[208] Therefore, the terms of the GFA are contingent on the UK’s continuing membership to the ECHR. Consequently, a reading of the agreement in good faith does not justify the removal of the ECHR because it would remove their ability to access the ECtHR. A NI-ECHR Continuity Bill could protect the GFA, however as noted, this may not be satisfactory to the UK Government’s agenda.
The GFA also protects the free movement of trade (“FMT”), and since the UK’s decision to withdraw from the EU, the Government and EU have made attempts to negotiate an agreement to protect the FMT between Britain, Scotland and Wales and the island of Ireland. The Northern Ireland Protocol (“NIP”) was the first agreement and the one which formed part of the EUWA. The NIP did not affect the human right element of the GFA;[209] in its introduction it expressly states that the “GFA is protected in all its parts”[210] and under Article 2, ‘Rights of the Individuals’, it affirms that the “UK shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in [the GFA] results from its withdrawal from the EU.”[211] However, due to trade disruption Sunak has recently made a deal with the EU – the ‘Windsor Framework’[212] – which will replace the NIP and provide a new legal and UK constitutional framework. The Windsor Framework does not mention human rights; however, the UK Government has confirmed that it adds to the NIP and restores the balance of the GFA in all its dimensions.[213] Therefore, it is implied that the new agreement does not affect the human right element of the GFA when it comes into force later in 2023.
As it is evident that the GFA peace treaty relies on NI’s direct access to the ECtHR, withdrawal from the ECHR would not only violate the GFA, but also violate Article 26 of the VCLA.[214] However, the GFA being a “true memorial to the victims of violence” [215] it could also, for want for a better phrase, be a real slap in the face to the victims and those affected by the violent conflict and cause a public outcry. Therefore, the UK Government will have to decide whether denouncing the ECHR is worth ripping up the peace treaty, violating the VCLT, and risk causing conflict with a region which has suffered decades of civil and political unrest.
EU-UK Trade and Cooperation Agreement
The TCA,[216] signed by then-Prime Minister, Johnson, on 31st December 2020 governs the relationship between the EU and UK following the UK’s departure from the EU. Like the GFA, it is an international treaty containing provisions that protect human rights and which also must be interpreted in good faith.[217] Three years and two Prime Ministers later, the future of the Agreement is being called into question over the UK’s politics surrounding the ECHR and human rights. As the Guardian highlights, “The [Agreement] could be immediately terminated if the British government quits the ECHR”.[218] To ascertain whether this headline is fact or fiction, this section of chapter 3 analyses the provisions of the termination and suspension clauses of Part Three and Part Six of the TCA.
Part Three of the Agreement contains the rules on law enforcement and judicial cooperation in criminal matters; in other words, it is the policing and security agreement. It is based on the “respect for human rights, including the ECHR, as well as the importance of giving effect to it domestically.”[219] Part Three of the Agreement can be terminated in its entirety or segments of it by either party through written notice via diplomatic channels.[220] If Part Three is terminated to facilitate the UK’s withdrawal of the ECHR it will cease to exist in its entirety when the denunciation becomes effective or if the notification of its termination is made after that date, on the fifteenth day following such notification.[221] Therefore, if the UK Government lawfully denounces the ECHR the EU could terminate Part Three in its entirety.
However, as an ‘essential element’ of Part Three includes giving effect to human rights, including the ECHR domestically,[222] the UK is open to face suspension of Part Three if it acts in a way that triggers a ‘serious and systemic deficiency’. Professor of EU and Human Rights Law Peers argues that denouncing the ECHR could generate ‘serious and systemic deficiencies’ but suspension is not guaranteed owing to the fact it is not automatic[223] and the substantive human rights grounds in Article 524 TCA[224] can be subject to dispute settlements.[225] To that end, Peers maintains the UK Government possesses the ability to denounce the ECHR without facing outright suspension of a Part Three. [226]
On the other hand, senior lecturer in law Dr Cowell points out that denouncing the ECHR is a violation of the EU’s core values as it puts the effective protection of fundamental rights at risk and is therefore a cause of indisputable suspension.[227] Cowell’s argument is supported by the European Parliament resolution which requires trade agreements to be in ‘strict accordance’ with EU values[228] and its emphasis on UK’s continued ECHR membership being a crucial component of future EU-UK relations.[229] Moreover, the European commission’s draft report on future security cooperation has also made clear that ECHR membership is an essential condition and denouncement is tied to the “guillotine clause.”[230] Evidently the overwhelming evidence in support of the TCA locking the UK into ongoing ECHR membership makes it clear that denouncing the ECHR would cross the threshold of ‘substantial failure’ and not only lead to the suspension of Part Three, but also violate Article 26 of the VCLA.
Importantly, Part Six of the Agreement possesses the power to terminate the Agreement in its entirety. For this to occur, the UK must make a ‘serious and substantial’ failure to fulfil any of the obligations that are described as ‘essential elements’ under the Basis for Cooperation provisions.[231] Unlike Part Three, the ECHR is not explicitly mentioned as an essential element, however, it is reasonable to presume that it is implied as parties are expected to have “respect for human rights.”[232] As a consequence, the UK is seemingly locked into “the UDHR and the international human rights treaties to which they are parties.”[233] Unsurprisingly, it is the UK Government’s Illegal Migrants Bill – which proposes to deport asylum seekers without first considering their claims, and that which the Home Secretary cannot comment on whether it is compatible with ECHR rights but wishes to proceed nonetheless –[234] which is why The Guardian is suggesting that the Agreement could be terminated.[235] As noted, for this to happen, the Illegal Migrants Bill must create an exceptionally ‘serious and substantial’ failure which “threatens peace and security or that has international repercussions”[236] to violate any of the obligations that are described as ‘essential elements’. However, Peers maintains that a ‘serious and substantial’ failure has a high threshold,[237] and in the circumstance that a failure did meet the threshold, termination is not automatic and there is an obligation of proportionality, which could prevent the EU from terminating the Agreement.[238]
The analysis of the devolution settlements will prove useful for the UK Government if it decides to trigger Article 58, ECHR. If denunciation is the decision, it will be left with two choices; allow the devolved regions to enact, for example, HRA Continuity Bills thus enjoy the legislative freedom to choose whether or not to keep the ECHR within their devolved constitutions, or respond to any stalemate caused by the regions submitting devolution references and working with Parliament to take control of the system. However, a note of caution is due here because as it stands, withdrawing from the ECHR will violate the GFA.
Another important conclusion of this chapter is the ability of the UK Government to denounce the ECHR without the entire termination of the Trade and Cooperation Agreement; evidently, the UK Government must decide whether the withdrawal of the ECHR is worth the termination or suspension of Part Three or potentially the entire TCA. As it stands however, Prime Minister Sunak has just agreed upon the Windsor Framework which implies the ECHR rights will remain entrenched in the NI law; and has affirmed that he does not believe the enactment of the Illegal Immigration Bill “violates human rights and therefore necessary to leave the ECHR.”[239] Evidently, if the UK Government does decide to trigger Article 58, it will have to evaluate whether the potential gains are worth the violating the VCLT and the bad faith between itself, the EU, and devolved regions.
Conclusion
I undertook this technical exercise to design a legal framework for a UK Government to denounce the ECHR. In chapter one I focused on how the substantive and procedural provisions of the ECHR could be interpreted in accordance with Article 58 of the ECHR by the ECtHR and found that a UK Government can lawfully withdrawal the ECHR if it abides by the provisions in good faith. My research from chapter two has proven that the Human Rights Act 1998 currently prevents the UK Government from lawfully denouncing the ECHR without first enacting an Act of Parliament which explicitly repeals the HRA 1998. However, my research also proves that a UK Government could alternately denounce the ECHR subsequently removing schedule 1 of the HRA 1998, modify Section 2 of the HRA 1998 replacing it with an unambiguous note on interpretation of the ECHR, and finally insert an interpretive schedule at the end of the HRA 1998 on how it is to be used post-withdrawal. However, I am unconvinced the latter is a viable or realistic option as I have found it is dependent on a narrow and bifurcation reading of the HRA 1998 which is an interpretation I do not predict the ECtHR will take. As a result of my extensive research into the devolution settlements of Scotland and Wales, and the international treaties of which the UK is party to, I must warn any UK Government in power with the intention to denounce the ECHR that, as the UK Constitution stands, its office cannot lawfully denounce the ECHR as withdrawing its membership will violate the terms of the Good Friday Agreement and the EU–UK Trade and Cooperation Agreement.
I am of firm mind that the GFA is contingent on having direct access to the ECtHR and withdrawing membership will remove NI’s access to the ECtHR and also be a violation of Article 31 of the VCLT. I am also without doubt that the terms of the TCA lock the UK into continual membership with the ECHR and withdrawing membership will be cross the threshold of ‘substantial failure’. Therefore, to achieve a lawful denunciation, the terms of the GFA and TCA must first be amended. Failure to do so will be in violation the GFA, result in the suspension of Part Three of the TCA, and also the violation of Article 26 and 31 of the Vienna Convention on the Law of Treaties. Therefore, I must advice the UK Government to first amend the terms of the GFA and TCA before attempting to denounce the ECHR; it cannot legally do so otherwise.
[1] European Convention on Human Rights.
[2] The UK Government has produced one full independent commission, four parliamentary enquiries, and two draft white papers to establish whether to repeal, replace or modify the Human Rights Act 1998.
[3] ‘The Government’s Independent Human Rights Act Review, Third Report of Session 2021–22’ (House of Commons and House of Lords Joint Committee on Human Rights 2021) HC 89 HL 31 2021–22.
[4] Human Rights Act 1998.
[5] ‘The Government’s Independent Human Rights Act Review, Third Report of Session 2021–22’ (n 3) 2021–22.
[6] Martin Banks, ‘Theresa May Criticised for ECHR Comments’ The Parliament Magazine (April 2016) <https://www.theparliamentmagazine.eu/news/article/theresa-may-criticised-for-echr-comments>.
[7] Professor Andrew Tettenborn, ‘Suella Braverman’s Human Rights Critics Are Missing the Point’ The Spectator (11 July 2022) <https://www.spectator.co.uk/article/suella-braverman-s-human-rights-critics-are-missing-the-point/>.
[8] Professor Frederick Cowell, The Law, Politics and Theory of Treaty Withdrawal (1st edn, Bloomsbury Publishing PLC 2023).
[9] Merris Amos, ‘The Value of the European Court of Human Rights to the United Kingdom’ (2017) 28 European Journal of International Law 763.
[10] Cowell (n 8).
[11] Steve Peers, ‘EU Law Analysis: Analysis 3 of the Brexit Deal: Human Rights and EU/UK Trade and Cooperation Agreement’ (EU Law Analysis, 4 January 2021) <http://eulawanalysis.blogspot.com/2021/01/analysis-3-of-brexit-deal-human-rights.html> accessed 9 March 2023.
[12] European Convention on Human Rights art 58.
[13] American Convention on Human Rights.
[14] American Convention on Human Rights art 78.
[15] European Convention on Human Rights art 58.
[16] European Communities Act 1972.
[17] Northern Ireland Peace Agreement 1998 (The Good Friday Agreement).
[18] EU-UK Trade and Cooperation Agreement 2021.
[19] Vienna Convention on the Law of Treaties 1969.
[20] Vienna Convention on the Law of Treaties 1969 art 18.
[21] Vienna Convention on the Law of Treaties 1969 art 26.
[22] Case of Hilaire, Constantine and Benjamin et al v Trinidad and Tobago 2002 (Inter-American Court of Human Rights).
[23] Case of Ivcher-Bronstein v Peru 1999 (Inter-American Court of Human Rights).
[24] IN THE MATTER OF INGABIRE VICTOIRE UMUHOZA v REPUBLIC OF RWANDA APPLTCATTON 003/2014 RULING ON JURISDICTION (AFRICAN COURT ON HUMAN AND PEOPLES’RIGHTS) [65–66].
[25] Council of Europe European Commission of Human Rights, ‘THE GREEK CASE’ 3321–4/67 para 6.
[26] ‘Royal Decree No. 280’.
[27] Council of Europe European Commission of Human Rights (n 25) para 2.
[28] Parliamentary Assembly, ‘General Policy of the Council of Europe’ (1967) Order 256.
[29] Council of Europe European Commission of Human Rights (n 25) 3.
[30] James Becket, ‘The Greek Case Before the European Human Rights Commission’ (1970) 1 Human Rights 91, 95.
[31] ‘The Sunday Times’ (1969) n for example see page 1.
[32] Becket (n 30) 107.
[33] Becket (n 30) 107.
[34] Yogesh Tyagi, ‘The Denunciation of Human Rights Treaties’ (2008) 79 British yearbook of international law 86, 159.
[35] Becket (n 30) 106.
[36] Becket (n 30) 106.
[37] Becket (n 30) 106.
[38] Becket (n 30) 112.
[39] Becket (n 30) 112.
[40] Brian Angelini, ‘Hilaire, Constantine and Benjamin and Others v. Trinidad and Tobago’ (2008) 134 International Law Reports 293, 368.
[41] David J Harris and others (eds), The Inter-American System of Human Rights (Oxford University Press 1998) 133–34.
[42] Harris and others (n 41) 136.
[43] Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago 2002 (n 22).
[44] Haniff Hilaire v Trinidad and Tobago, Case 11816, Report No 43/98.
[45] Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago 2002 (n 22) para 3.
[46] Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago 2002 (n 22) para 5.
[47] Natasha Parassram Concepcion, ‘The Legal Implications of Trinidad & Tobago’s Withdrawal from the American Convention on Human Rights’ 849.
[48] Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago 2002 (n 22) para 1.
[49] Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago 2002 (n 22).
[50] David S Berry, ‘Hyper-Interpretation: Promise or Peril?’ (2008) 102 Proceedings of the Annual Meeting (American Society of International Law) 416, 374.
[51] Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago 2002 (n 22) para 16.
[52] ‘Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago’ (2015) 37 Loyola of Los Angeles International and Comparative Law Review 1091.
[53] Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago 2002 (n 22) para 15.
[54] Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago 2002 (n 22) para 212.
[55] A. To immediately reinstate Mr. Ivcher Bronstein’s Peruvian nationality title and restore full and unconditional recognition of his Peruvian nationality, with all attendant rights and prerogatives. B. To immediately desist from the harassment and persecution of Mr. Ivcher Bronstein and to refrain from any further actions that violate his right to freedom of expression. C. To take the necessary steps to re-establish Mr. Baruch Ivcher Bronstein’s enjoyment and exercise of his right to own shares in the Compañía Latinoamericana de Radiodifusión S.A. and with that restore to him all his prerogatives as a shareholder and administrator of that business. D. To indemnify Mr. Ivcher Bronstein for the material and moral damages that the conduct of the administrative and judicial organs of the State caused him. E. To adopt the legislative and administrative measures necessary to prevent episodes of this kind in the future.
[56] Case of Ivcher-Bronstein v. Peru 1999 (n 23) para 31.
[57] Case of Ivcher-Bronstein v. Peru 1999 (n 23) para 23.
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[63] European Convention on Human Rights.
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[74] Article 41 of the ECHR so as to compensate the applicant for the actual damage established as being consequent to a violation.
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[93] ‘United Nations General Assembly Resolution ES-11/1’.
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[99] ‘Annual Reports – Department for the Execution of Judgments of the European Court of Human Rights’ (European Court of Human Rights).
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[118] Human Rights Act 1998 s 6.
[119] European Convention on Human Rights art 2.
[120] Re McKerr (AP) (Respondent) (Northern Ireland) [2004] UKHL 12 on appeal from: [2003] NICA 1 (judgments) (n 117) para 26.
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[127] Human Rights Act 1998 s 7.
[128] Human Rights Act 1998 s 8.
[129] Young and Phillipson (n 114).
[130] Human Rights Act 1998 s 1(1).
[131] Human Rights Act 1998 s 1(1).
[132] Articles 2-12 and 14 of the Convention, (b) Articles 1 to 3 of the First Protocol, and (c) [Article 1 of the Thirteenth Protocol], as read with Articles 16 to 18 of the Convention Articles 2-12 and 14 of the ECHR’.
[133] Human Rights Act 1998 s 21(1).
[134] Young and Phillipson (n 114) 14.
[135] ‘Lord Bingham of Cornhill, in His Maiden Speech in the House of Lords, Set out This and Five Further Ways in Which Treaties Can Have Indirect Effect in the UK: HL Deb 3 July 1996 C1465 Ff’.
[136] R v Secretary of State for Transport ex p Factortame Ltd (Interim Relief Order) [1990] UKHL 7 (UKHL (1990)).
[137] R v Secretary of State for Transport ex p Factortame Ltd (Interim Relief Order) [1990] UKHL 7 (n 136).
[138] Merchant Shipping Act 1988.
[139] Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) (EWHC (Admin)).
[140] Units of Measurements Regulations 1994.
[141] European Communities Act 1972 s 2(2).
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[145] Allister & Peeples, Re Applications for Judicial Reviews (Northern Ireland) [2023] UKSC 5 (UKSC (2023)).
[146] Acts of Union 1800.
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[148] Allister & Peeples, Re Applications for Judicial Reviews (Northern Ireland) [2023] UKSC 5 (n 145) para 66.
[149] Allister & Peeples, Re Applications for Judicial Reviews (Northern Ireland) [2023] UKSC 5 (n 145) paras 18, 85.
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[151] A Bill to reform the law relating to human rights 2022 [117].
[152] Bill of Rights Bill s 36(1).
[153] Bill of Rights Bill.
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[156] ‘Oral Evidence from the Prime Minister, HC 947, Liaison Committee’ (2022) paras 66–70.
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[162] Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 109.
[163] Derbyshire County Council Appellant v Times Newspapers Ltd and Others Respondents [1993] AC 534.
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[168] R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2015].
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[170] Osborn v The Parole Board [2013] UKSC 61 (UKSC (2013)).
[171] Osborn v The Parole Board [2013] UKSC 61 (n 170) para 56.
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[173] Patrick S Hodge, ‘The Scope of Judicial Law-Making in Constitutional Law and Public Law’ (2021) 26 Judicial Review 146, 2.
[174] Malone v Metropolitan Police Commissioner [1979] 2 All ER 620 620.
[175] Human Rights Act 1998 s 6.
[176] European Convention on Human Rights art 58(1).
[177] Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) (n 139) para 66.
[178] European Union (Withdrawal Agreement) Act 2020 Explanatory Notes 44–46.
[179] Bill Of Rights Bill Explanatory Notes 2022 [117] 10–11.
[180] Northern Ireland Peace Agreement 1998 (The Good Friday Agreement).
[181] EU-UK Trade and Cooperation Agreement.
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[184] Civil Service, UK Government (n 183) 5.
[185] Government of Wales Act 2006 Schedule 7A Part 1 art 10(3).
[186] Scotland Act 1998.
[187] Northern Ireland Act 1998 ss 6, 24, 81 and 83.
[188] Northern Ireland Act 1998 s 7(1).
[189] Scotland Act 1998 s 29(2)(d).
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[197] European Union (Notification of Withdrawal) Act 2017.
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[202] Vienna Convention on the Law of Treaties 1969 art 26.
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[212] HM Government, ‘The Windsor Framework: A New Way Forward’ (2023).
[213] HM Government (n 212) 3.
[214] Vienna Convention on the Law of Treaties 1969 art 26.
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[216] EU-UK Trade and Cooperation Agreement.
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[219] EU-UK Trade and Cooperation Agreement art 524(1).
[220] EU-UK Trade and Cooperation Agreement art 526(5).
[221] EU-UK Trade and Cooperation Agreement art 692(2).
[222] EU-UK Trade and Cooperation Agreement art 524(1).
[223] EU-UK Trade and Cooperation Agreement art 693(1).
[224] Article 524 TCA dispute settlements involve an initial period of consultation between the parties and possible recourse to an independent arbitration tribunal.
[225] Peers (n 11).
[226] Peers (n 11).
[227] Professor Frederick Cowell, ‘The Brexit Deal Locks the UK into Continued Strasbourg Human Rights Court Membership’ (LSE BREXIT) <https://blogs.lse.ac.uk/brexit/2021/01/17/the-brexit-deal-locks-the-uk-into-continued-strasbourg-human-rights-court-membership/>.
[228] European Parliament, ‘European Parliament Resolution of 14 March 2018 on the Framework of the Future EU-UK Relationship (2018/2573(RSP))’.
[229] Jon Stone, ‘Britain Must Stay in European Court of Human Rights If It Wants a Trade Deal, Brussels to Insist’ The Independent (Brussels, 7 December 2017).
[230] Daniel Boffey, ‘Brussels Seeks to Tie UK to European Human Rights Court after Brexit’ The Guardian (18 June 2018).
[231] EU-UK Trade and Cooperation Agreement art 763(1).
[232] EU-UK Trade and Cooperation Agreement pt 6.
[233] EU-UK Trade and Cooperation Agreement art 763(1).
[234] Illegal Migrants Bill – A Bill to Make provision for and in connection with the removal from the United Kingdom of persons who have entered or arrived in breach of immigration control; to make provision about detention for immigration purposes; to make provision about unaccompanied children; to make provision about victims of slavery or human trafficking; to make provision about leave to enter or remain in the United Kingdom; to make provision about citizenship; to make provision about the inadmissibility of certain protection and certain human rights claims relating to immigration; to make provision about the maximum number of persons entering the United Kingdom annually using safe and legal routes; and for connected purposes.
[235] O’Carroll and correspondent (n 218).
[236] EU-UK Trade and Cooperation Agreement art 772(4).
[237] Peers (n 11).
[238] EU-UK Trade and Cooperation Agreement art 772(3).
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