Treaties like the ECHR protect everyone in the UK, not just migrants
Alice Donald, Middlesex University and Joelle Grogan, University College Dublin
Reform UK has laid out plans for an “emergency programme” to address illegal immigration. The party argues its plans, which include expanding immigration detention capacity from the current roughly 2,200 places to 24,000, would enable the deportation of up to 600,000 people over a parliamentary term.
The plans would require removing legal protections against mass deportation without due process. Specifically, Reform has called for repealing the Human Rights Act (HRA) 1998 and permanently withdrawing the UK from the European Convention on Human Rights (ECHR). Nigel Farage has also proposed disapplying for five years the 1951 Refugee Convention, the UN Convention against Torture and the Council of Europe anti-trafficking convention, although these treaties do not, in fact, allow for temporary suspension.
Beyond the apparent logistical challenges are serious political repercussions. The Good Friday Agreement requires the rights and freedoms in the ECHR and recourse to the European Court of Human Rights to be part of the law in Northern Ireland. Withdrawing would require a renegotiation of the agreement. A showdown would also ensue with the devolved assemblies in Wales, Scotland and Northern Ireland.
Reform has touted its plan as a “legal reset”. But it is better understood as a total rejection of the UK’s postwar international commitments to protect the human rights of everyone within its jurisdiction.
These commitments, and others, have cemented the UK at the heart of the rules-based international order. This is the foundational idea that countries are bound by the legal commitments they make to each other and everyone within their jurisdiction. Successive governments have viewed this as both a moral imperative and a core aspect of the UK’s foreign and defence policies.
Reform’s plan would be an unprecedented and drastic rupture with almost eight decades of commitment to human rights protections. It would have far-reaching implications for all people in the UK, not just refugees.
How the ECHR protects everyone
If the UK withdrew from the ECHR, everyone living in the UK would lose the ability to take cases to the European Court of Human Rights if they fail to get justice domestically.
ECHR rights have been invoked to protect victims of domestic abuse, children and disabled people. The right to private and family life, the application of which has been (inaccurately) criticised for preventing deportation, is the same right relied on to protect privacy in the workplace or from surveillance, to uphold the dignity of older and disabled people in residential care, and to secure legal protection for LGBTQ+ people.
The ECHR alone has provided redress to victims of crime who have been failed by state investigations, like the survivors and bereaved families of the Hillsborough disaster or the victims of the “black cab rapist” John Worboys. Ironically, Reform UK has repeatedly argued for protection of free speech, which is protected primarily by the ECHR.
The wider cost of UK withdrawal from international treaties would be the loss of influence and reputation. These treaties are benchmarks for international cooperation, and foundational to international order. Pulling out of the UN convention against torture and the anti-trafficking convention would signal the UK’s abandonment of global principles to combat torture, modern slavery, sexual exploitation and trafficking, including the illegal trade in human organs.
Far from enabling the UK to control migration, a do-it-alone stance would harm the ability of future governments to do so. Removing the UK from the negotiating table would forfeit the opportunity to shape and benefit from cooperation to tackle a global challenge. We have seen this before: UK withdrawal from the EU took it out of the Dublin system and ongoing EU-wide efforts to manage migration and returns, just as small boat arrivals increased.
Beyond this, removals require treaties with other countries. Treaties require political will, mutual benefit, time and trust that the signatories will hold to their commitments. Where these are lacking, as evidenced by the failed and costly Rwanda policy, receiving countries can extract a very high price from the UK.
Could the rights be replaced?
To implement these plans, a Reform government would need to pass legislation through parliament to repeal the Human Rights Act (HRA). If successful, this would pave the way for the UK to give notice to the Council of Europe to withdraw from the ECHR.
Without the HRA, there is no equivalent protection to the ECHR elsewhere in UK law. The common law, a body of law developed over centuries by judicial decisions as distinct from laws passed by parliament, would continue to provide some protection for rights, including personal liberty, access to justice, the right to a fair trial and the prohibition of torture.
Common law principles would still guide British judges when making decisions about mass detention and deportation without due process. It is also possible that a new bill of rights could be enacted, containing a similar or identical catalogue of rights to the ECHR.
The most important difference would be how rights would be protected in practice. Would any replacement, like the HRA, oblige public authorities and the government to uphold rights in their decisions and actions? And would it allow higher courts to declare a law incompatible with human rights, flagging to parliament that the law should be reconsidered?
Human rights protections are invisible to most people living in the UK. The expectation that police and your local council must treat you fairly, that health and care services must respect your dignity, and that there will be legal remedy if the state fails you, is so normalised that it would be inconceivable to think it could disappear within the UK.
But it is the invisible integration of individual rights within the UK system that makes this both a lived and legal reality. Stripping away these protections would leave us all naked.
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Alice Donald, Professor, Middlesex University and Joelle Grogan, Senior Visiting Research Fellow, UCD Sutherland School of Law, University College Dublin
This article is republished from The Conversation under a Creative Commons license. Read the original article.
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