What is the European Convention on Human Rights?

·3-min read
Home Secretary Suella Braverman has been vocal about pushing to leave the ECHR (Aaron Chown / PA)
Home Secretary Suella Braverman has been vocal about pushing to leave the ECHR (Aaron Chown / PA)

Any move to allow ministers to ignore European Court of Human Rights orders stopping the removal of migrants would “undermine” the rule of law, senior legal figures have warned.

Backbench Tory MPs have reportedly successfully lobbied the Government to amend the Illegal Migration Bill in order to allow ministers to ignore European judges in certain situations.

Lord Thomas, a cross-bench peer who headed the judiciary between 2013 and 2017, warned that such proposals could face defeat in the Lords, and said that any such move would set “an extraordinarily bad example”.

“I think it is a very serious step for the Government to be contemplating putting into force,” he told BBC Radio 4’s Today programme.

Last month, Home Secretary Suella Braverman said she was “encouraged” by “constructive” discussions with the European Court of Human Rights (ECHR, also ECtHR) about the injunction that halted migrant flights to Rwanda.

A Government source said any change to the injunction “would remove a key barrier to getting flights off the ground”.

But the ECHR, which granted an injunction via its Rule 39 in 2022, has not commented on any discussions.

Official estimates suggested 65,000 illegal migrants are expected to arrive in the UK this year via the Channel compared with the 45,000 who did so in 2022.

But what is the ECHR? Here’s what you need to know.

European Court of Human Rights (Alamy / PA)
European Court of Human Rights (Alamy / PA)

What is the European Convention on Human Rights?

The ECHR is a treaty that established the European Court of Human Rights as a supranational court of appeal for cases to be heard when they have gone as far as they can in domestic courts.

It took effect in 1953 and the ECtHR was set up in 1959. It rules on individual or state applications alleging violations of the civil and political rights set out in the convention. Since 1998, it has sat as a full-time court and individuals can apply to it directly.

Over more than 60 years, the court has delivered more than 10,000 judgments, which are binding on the countries concerned, leading governments to alter their legislation and administrative practices in a wide range of areas.

The ECtHR’s case law makes the convention a powerful instrument for meeting new challenges and consolidating the rule of law and democracy in Europe.

The court is based in Strasbourg, in the Human Rights Building designed by British architect Richard Rogers in 1994 — a building whose image is known worldwide. From here, it monitors respect for the human rights of 700 million Europeans in the 46 Council of Europe member states that have ratified the convention.

What would leaving the ECHR mean?

The Conservative Party has had a long history of disagreement with the Strasbourg court and has, on numerous occasions, not ruled out leaving it. However, we are still members, despite Brexit.

In 2013, Theresa May said that all options remained on the table to deal with the court’s interpretation of human rights.

Mr Raab sought to circumvent the court using a new bill of rights, rather than simply exiting the body.

The Government said a British bill of rights will make plain that ECtHR judgments, including such interim measures, are not binding on UK courts. Many lawyers argue this is a red herring. The website of the supreme court says UK courts must “take account” of the Strasbourg court but can decline to follow its rulings.

If the bill of rights is introduced, other benefits include making it easier to deport foreign criminals by restricting the circumstances in which their right to family life would trump public safety and the need to remove them.