Knee-jerk nationalist rejection of the ECHR by the UK would set a terrible example for autocracies

An important and very welcome ruling by the Belfast High Court this week preventing the deportation of a 16-year-old Iranian asylum seeker has fired a shot across the bows of Conservative determination to defy legally-binding international human rights obligations.

Mr Justice Michael Humphreys ruled that large parts of the UK government’s Illegal Migration Act – which provides powers to remove “illegal” asylum seekers to Rwanda – should not apply to Northern Ireland because it breaches human rights protections guaranteed by the post-Brexit Windsor Framework deal, the Belfast Agreement and the European Convention on Human Rights (ECHR).

The safeguarding of the North’s human rights standards in the Belfast Agreement was copper-fastened in the Brexit deal, but repeated suggestions that the UK might withdraw from the European Court of Human Rights have caused alarm with human rights groups. The disapplication of the Rwanda law from the North will reassure critics, but PM Rishi Sunak is adamant that it will not derail his plans.

“I have been consistently clear that the commitments in the Belfast Agreement should be interpreted as they were always intended, and not expanded to cover issues like illegal migration,” he insists, like Boris Johnson, retrospectively reinterpreting the agreement. “We will take all steps to defend that position, including through appeal.”

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Tory resentment of the ECHR and of the court is long-standing despite Winston Churchill’s enthusiastic participation in its post-War establishment as a response to totalitarianism. Although it has nothing to do with the EU, a fact many Tories seem to have overlooked, the 46-member court has been swept up in a frenzy of Brexit-inspired nationalist fervour by the Tory right.

In truth the British never really imagined the ECHR would apply to them, while conservative critics of the court complained about how its judges rejected “originalism” – a strict textual interpretation – and saw it as a “living instrument” capable of evolving its jurisprudence to keep up with the times.

Originalist critics objected to the idea that a 1950 definition of “private and family life” was organic enough to protect same-sex unions. And Sunak spoke of “complete overreach” of the court when in April (Verein KlimaSeniorinnen Schweiz and Others v. Switzerland) it ruled the Swiss government violated its citizens’ human rights by not doing enough to stop climate change.

Irish and British cases now before the domestic courts will lean on similar arguments to challenge government failures on the issue. The British have also objected to the court’s “extraterritoriality”, specifically its right to pass judgment on British soldiers’ actions in the territory of a non-member state.

In the case of an Iraqi civilian, Baha Mousa, beaten to death by a group of British soldiers, the army’s own legal counsel Lt Col Nicholas Mercer defied instructions from his government to ignore the convention obligations and argued it did indeed apply to the actions of British troops in Iraq. His view was upheld by a subsequent court martial.

The protection of its soldiers from scrutiny and accountability has been a recurring feature of London’s policy and is key to its controversial Northern Ireland Legacy Act. In the Belfast High Court in February Mr Justice Colton ruled that a central feature of the act – conditional immunity from prosecutions for Troubles-related killings – is in breach of international human rights law.

He was “satisfied” the provisions for immunity from prosecution under section 19 of the act were in breach of articles 2 and 3 of the ECHR and article 2 of the Windsor Framework, and this part of the legislation should also be disapplied. He also ruled that part of the act which stipulated an end to Troubles-related civil claims was incompatible with article 6 of the ECHR and article 2 of the WF and “should therefore be disapplied”.

Withdrawal from the court and the repudiation of the ECHR, now likely to feature in the next Tory manifesto, are likely to entail serious international fallout to the UK’s international good name as an upholder of international agreements. There is no way for the UK to leave the ECHR without violating the Belfast Agreement, pitting the UK against Ireland, which is already suing the UK in the court over the Legacy Act – and the US and EU as its guarantors.

Relations with the EU would also be strained because the UK-EU trade and co-operation agreement, which governs the post-Brexit relationship, commits explicitly to the ECHR’s human rights protection, particularly over security and judicial co-operation. The EU has insisted that if the UK withdraws it would terminate this part of the agreement, effectively stopping, for example, extradition of criminal suspects to face trial in the UK.

A knee-jerk nationalist rejection of this “foreign court” by the UK would set a terrible example to autocracies, undermining an important pillar of the universalist defence of human rights.