Rishi Sunak’s recent suggestion that he is prepared to take the UK out of the European Convention of Human Rights (“ECHR”) is a particularly brave one, and one which appears necessary for his government to deliver. Official estimates suggest there will be a 50 per cent rise in migration from last year with 65,000 arrivals expected. The proposed bill to tackle this will “go as far as possible within international law” according to a source, said to be familiar with Sunak’s thinking. The issue here is that any Act aiming to address the migration crisis may be upheld in our domestic courts, but encounter opposition in Strasbourg’s European Court of Human Rights (“ECtHR”).

By its own admission, the caseload has outpaced the court’s capacity

The ECtHR has done this before, as recently as 14 June 2022. The court granted an injunction which grounded the first flight to send asylum seekers to Rwanda. Priti Patel, then Home Secretary, characterised the decision as politically motivated. This was a significant problem for Boris Johnson’s government — yet presents a unique opportunity for Sunak’s. He has the opportunity to make good on the empty promises following the review of the 1998 Human Rights Act (“The HRA”). To accomplish this, Sunak must address the ECtHR in the arena of political combat. For a government elected on the promise of Brexit, this is a gift. Yet again, a pan-European entity (the ECtHR) has been caught, visibly overreaching into British domestic politics.

To understand why reconfiguring the UK’s relationship with the ECHR is potentially of value to Britain, it is important to address the role of The HRA. The HRA — essentially an instrument of Tony Blair’s legacy — helps the ECtHR deal with its ongoing issues of mission-creep and federal-style overreach. It is crucial to note that the ECtHR began life as a 12-nation inter-state court, resolving state-on-state disputes. Today, it takes individual petitions from a jurisdiction of approximately 820 million people. By its own admission, the caseload of the ECtHR has outpaced the court’s capacity. In 2011 it was discovered that it may “take 46 years” for the court to address its backlog. 

To resolve this, the ECtHR has committed to a policy of “subsidiarity” — that is the use of national-level acts such as the HRA which divert cases away from it. This approach was restated in 2012’s Brighton Declaration and championed by David Cameron. In short, the HRA is a solution to the ECtHR’s jurisdiction enlarging beyond its competence and ability to understand the nations it presides over. From prisoner voting to the Rwanda plan, the ECtHR, in line with its decision in Tyrer, has been bringing the UK more in line with “commonly accepted standards” seen in “member states of the Council of Europe” — well over half of which remain in the EU.

The European Union (“EU”) understood this when it decided the ECtHR was likely to work against its own internal interests. The EU was never able to agree to an Accession Agreement with the ECtHR. Arguably, it actively torpedoed such efforts. On 18 December 2014, after lengthy negotiations, the EU’s own multi-nation court, the CJEU, ruled that a draft Accession Agreement is incompatible with EU law. Perhaps by pure coincidence, this came after the Jordanian government ceased accepting refugees from Syria — the catalyst for the 2015 migrant crisis in Europe. 

Councillor of the Supreme Court of the Netherlands, Martin Kuijer, commented that the “tone of the [CJEU’s] opinion raised eyebrows”, chiefly because the CJEU placed greater importance on the safeguarding of its exclusive jurisdiction above the future of human rights protections in Europe. The CJEU’s opinion “seem[ed] to have been written with one purpose only: to kill off accession altogether”. The CJEU itself admitted the jurisprudence of the ECtHR was incompatible with “certain specific features of [European] Union law as they currently exist”.

The largest suspension of human rights in recent British history was deemed compatible

This seldom-discussed battle of legal wills shows that the ECHR can and has acted against the interests of signatory nations. Sunak may need to emulate the EU’s resolve if he is to win the favour of his core supporters. With the Conservatives’ current parliamentary majority of 75, it is entirely possible the government could create “certain specific features of UK law” which would ensure total independence from the ECtHR’s rulings. The main obstacle facing the government is the presence of the HRA, which allows courts to rule that legislation (or ministerial actions) is incompatible with the ECtHR’s founding convention. 

The government already has a track record of successfully creating legislation that ought reasonably be interpreted as incompatible with the ECtHR’s founding convention — namely, The Coronavirus Act (2020). Campaigner Simon Dolan made the most significant challenge in a higher court to the lockdown, which cost a private individual £684,535, and was rejected. The decision in Dolan & Ors, R (On the application of) v Secretary of State for Health and Social Care & Anor [2020] EWCA 1605 proved that the largest suspension of human rights in recent British history could be deemed compatible in its entirety with the HRA, and the ECtHR. 

Why is the government not willing to utilise its majority to produce legislative outcomes that are actually desirable to their core supporters? A 2011 poll found 75 per cent of UK adults felt the HRA was applied “too widely to create rights that it was never intended to protect”. 77 per cent of Britons agree that illegal immigration is a serious problem facing the UK. In the words of 16th century lawyer Richard Moryson, if Sunak is to save himself a disastrous election defeat, it is his duty to act like an “English tailor” making an “English gown” of European human rights law. If it is to do so, both substantive change to the duties the HRA places on the state and withdrawal from the ECtHR’s jurisdiction must remain on the table.