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After Brexit: the ECHR next? Bottom-up and top-down protection

Introduction: a long held grudge

Andrea Leadsom’s decision to withdraw from the conservative leadership election on 11 July is only the latest aftershock of the political earthquake that has occurred in the wake of the EU referendum. Theresa May, the Home Secretary, will now succeed David Cameron as the Prime Minister of the United Kingdom on Thursday 13 May. Many questions of relevance to ‘Brexit’ remain to be answered, including whether Theresa May will indeed trigger Article 50 despite her assurances that ‘Brexit means Brexit’ and whether a general election could now occur and what ramifications this could have for withdrawal. This post, however, will focus on a different concern: whether May’s ascension to Prime Minister could now place the UK’s membership of the European Convention of Human Rights (ECHR) in jeopardy, thus
cutting the United Kingdom’s remaining supranational legal tie with Europe.

May has a longstanding grudge against the ECHR. This is not a Euro-antagonistic position informed by political opportunism such as Boris Johnson’s championing of the leave campaign in the referendum; instead this antipathy has built up through 6 years of experience coming up against the protections guaranteed by the Convention in her role as Home Secretary. Perhaps May’s most bruising political experience was her attempt to deport Abu Quatada to Jordan to face terror charges, only to be thwarted by the “crazy interpretation of our human rights laws” by the European Court of Human Rights. These clashes have informed Conservative proposals for repeal of the Human Rights Act 1998, which makes the Convention justiciable by the United Kingdom’s courts, to withdrawing completely from the Convention. Despite May’s assurances in her declaration to run for the leadership that she would
not now pursue withdrawal from the ECHR, this could well be a short-term strategy to manage the fallout from the EU referendum. Therefore, it does not seem implausible that a May Premiership will return to a policy that has been stated with vigour as recently as late-April.

This piece will analyse how in the event of withdrawal there will be “bottom up” protection of the rights found in the Convention through the common law of the United Kingdom, and “top down” protection through international regional customary law. The argument will be presented that, regardless of the political points that may be scored by such grand withdrawals from international treaty regimes, the reality of the interconnected nature of the international and national human rights legal architecture means that it may well be nearly impossible for a state to extricate itself completely through unilateral means.

Bottom up protection: common law constitutionalism

A trend can be detected in the case-law of the English courts whereby the rights found in the ECHR have also been entrenched, or ‘discovered’ to have always existed, in the common law. The clearest indication of this phenomenon has been provided by the extra-judicial discussions of the case law by judges such as Lord Justice Laws and Baroness
Hale.
Indeed, in her keynote address to the Constitutional and Administrative Law Bar Association, Baroness Hale somewhat mischievously points towards the potential of this trend occurring as a result of “putting down a marker for what might happen if the
1998 Act were repealed” before conceding that she would “leave it to you (the practitioners) and to the academics to decide”. Taking up Baroness Hale’s suggestion, the argument here is that the reinforcement of common law rights should be understood as the judiciary preemptively creating a barricade to prevent the excesses of unchecked executive and legislative power running roughshod over human rights in the event of withdrawal from the ECHR.

The broad contours of the phenomenon found in the dicta of judges adjudicating in cases such as R(Daly) v Secretary of State for the Home Office and Kennedy v The Charity Commission is that accession to the European Convention of Human Rights and its incorporation in the Human Rights Act did not serve to override the validity of common law rights, but instead that both sources co-exist together in the constitution of the United Kingdom. Indeed, further than this, Hale’s discussion of Osborn v Parole Board suggests that the common law rights should take priority, at least temporally as the ‘natural starting point’ before the Convention is then used as a reinforcing check. Therefore, in paragraph 57 of the case, Lord Reed stated the position that the Human Rights Act “does not… supersede the protection of human rights under the common law or statue”. Consequently, the claimants should have challenged the parole board’s decision on the common law standards of procedural fairness, rather than primarily alleging a breach of Article 5(4) of the Convention.

The advantages of this approach if the United Kingdom were to withdraw from the European Convention of Human Rights is that the UK Courts could draw upon an established jurisprudence of common law rights to ensure that the de facto level of rights protection for UK citizens is maintained. An asset of the common law is its flexibility in response to change; as Baroness Hale observes, no two lists of common law rights would be the same. Therefore, acting in an instrumental manner, it would not be too much of a stretch for the United
Kingdom’s judiciary to ‘discover’ that the common law has provided exactly the same substantive content as the rights found in the Convention. Furthermore, this would arguably be more palatable for those who are critical of the Strasbourg court’s evolutive interpretation of the Convention and its judgments on European ‘consensus’, as it would be a national court deciding on the level of rights protection applicable in the United Kingdom.

However, the national nature of this judicial protection is precisely what would make it vulnerable. If a British Bill of Rights were promulgated to replace the Human Rights Act
1998, then it would be free for Parliament to explicitly regress from the substantive protection of the Convention that would be found in the common law, as statutes take priority over the common law in the United Kingdom’s common law system. Although the Courts would still have some interpretative discretion, the codification of enforceable rights in statute would greatly reduce their room to manoeuvre. Such an explicit repeal of common law standards would also be free from supranational judicial oversight because if the UK government were to withdraw from the Convention then the treaty-monitoring body of the European Court of Human Rights would no longer have jurisdiction over the United Kingdom as a contracting party. Therefore, the fragility of ‘bottom up’ rights protection from Parliament prompts consideration of whether there are ‘top down’ solutions from international law which could further bolster rights protection in a post-ECHR United Kingdom.

Top-down protection: regional customary international law

Draft conclusion 16 of the International Law Commission’s draft conclusions on the identification of customary international law outlines that ‘[a] rule of particular customary international law, whether regional, local or other, is a rule of customary international law that applies only among a limited number of States’. Sir Michael Wood, the special rapporteur, explicitly outlined in his Distinguished Lecture at the Academy of European Law that this concept could become important
for the United Kingdom in the event of a withdrawal from the ECHR. In accordance with the guidelines provided by the ILC’s non-binding draft conclusions, the existence and content of a rule of particular customary international law is ascertained by determining whether there is a general practice among the states concerned that is accepted by them as law (the element referred to as opinio juris). This is a necessarily reductive statement of a complex and controversial area of international law; however such simplification is in accordance with the stated purpose of the guidelines to provide a simple statement of how to apply and adjudicate upon customary law for domestic judges who have no international law expertise.

This is especially pertinent to the situation of UK courts following withdrawal from the ECHR, as national courts have the jurisdiction to adjudicate upon questions of international law without any implementing Act of Parliament, as is most clearly outlined in Lord Denning’s dicta in Trendtex Trading Corporation Ltd. V Central Bank of Nigeria. Therefore, the courts would be able to find the existence of a regional customary rule in the situation in which state practice, in the form of both physical and verbal acts, can be identified. Draft Conclusion 6 outlines that such practice can take the form of diplomatic acts and correspondence; conduct in connection with resolutions adopted by an international organisation or at an intergovernmental conference; conduct in connection with treaties; executive conduct, including operational conduct “on the ground”; legislative and administrative acts; and decisions of national courts. With regard to the status of rights found in the Convention as regional custom, the compliance of the United Kingdom with the Convention, and its compliance with judicial findings by the ECtHR against it can count as relevant practice, in addition to evidence that the ‘practice in question [was] undertaken with a sense of legal right of obligation’.

This daunting task for national courts could be assisted by the Strasbourg court’s plentiful case-law on the notion of a European ‘consensus’. Ineta Ziemele, the former Latvian judge on the Court, outlined in her course at the Academy of European Law that there has been ‘in-house debate’ over whether this concept is akin to regional custom, with the status quo erring on the side of differentiation due to the wariness of the court in adjudicating on customary international law rather than confining itself to the Convention. Despite this,
Ziemele argued that there are certain cases where consensus will be understood as regional customary law when the majority of the contracting states’ domestic laws so indicates. The argument could indeed be made that the second element of opinio juris is not required when adjudicating on Convention rights due to the fact that they are binding through the source of treaty law. Regardless of the exact status of ‘consensus’, the Strasbourg Courts’ jurisprudence on this could prove invaluable for a court in a state which has cut itself off
from the binding force of the Convention in determining what human rights obligations would nevertheless remain binding as a matter of customary international law due to their widespread acceptance by European states. Such a course would accord with the discourse of leave campaigners that following Brexit the UK may well leave the EU, but it won’t have left Europe.

The application by UK courts of standards of regional customary law is advantageous for the protection of human rights due to the fact that the sources of international law cannot be overridden by national legislation. As indicated by Lord Denning ay pages 889-890 of Trendtex, the rules of international law change and the courts give effect to the changes without any Act of Parliament. This top-down protection would therefore bolster the bottom-up and more detailed protection provided by common law rights. This could also prove to be more acceptable for the government of the United Kingdom due to the fact that adjudication on rights found in international law would be within the remit of national courts rather than a supranational foreign court.
The rule of the ‘persistent objector’ could also favour government positions against the terms and interpretation of the Convention. According to Draft Conclusion 15, where a State has objected to a rule of customary international law while that rule was in the process of formation, the rule is not opposable to the State concerned for so long as it maintains its objection. This doctrine could allow for aspects of the Convention that the government objects to, most
famously the right of prisoners to vote
, to be prevented from crystallising into binding international obligations. On the other side, the fact that the objection must be provided while the rule was in formation would prevent the government from claiming it had persistently objected to aspects of the substantive Convention rights which have been uncontested. However, as with much of customary international law, this prospect is uncertain as Sir Michael Wood has outlined his position that the persistent objector rule may not apply to regional customary law.

Conclusion: an impossible extrication?

This post has sought to show how even if the United Kingdom chooses to withdraw from the European Convention of Human Rights, the obligations found in the treaty may have become so enshrined in both national law and international law that in practice it would be impossible for a state to complete free itself from their binding character. Although it may be argued that there is political capital in courting populist and nationalist sentiment through such assertions of national sovereignty, in practice the only legal difference may be that it
is the UK courts rather than the European Court of Human Rights in Strasbourg that will be adjudicating on the substance and application of the rights. To those who endorse the rhetoric of ‘taking back control of the country’ this may well be a desirable outcome. But a future government led by Theresa May should ask itself the hard question, particularly in conjunction with the experience of ‘Brexit’, of whether the administrative complexities and the negative effects on the reputation of the United Kingdom as a state which takes its
international obligations seriously would be worth the largely symbolic positive benefits of such an emancipatory move.

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