Would ECHR affect Theresa May's announcement to combat extremism?

5

Theresa may has announced on twitter that she is willing to change human rights laws to help fight extremism.

I'm clear: if human rights laws get in the way of tackling extremism and terrorism, we will change those laws to keep British people safe.

But wouldn't the European Convention on Human Rights get in the way of that decision?

Bradley Wilson

Posted 2017-06-06T21:28:03.843

Reputation: 5 862

It seems to me there is some ground between UK law and the European Convention. Would it be fair to say the UK is the most repressive member? – None – 2017-06-06T22:21:38.610

Answers

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In the video May is literally proposing to lock up people without due process:

[D]oing more to restrict the freedom and movement of terrorists suspects when we have enough evidence to know they are a threat, but not enough evidence to prosecute them in full in court.

She didn't explicitly mention any other human rights laws she wants to scrap, so I'll focus on just this one.

tl;dr

Article 15 of the treaty allows for "derogation in time of emergency", which has been applied successfully to a number of terrorism cases (such as the IRA). Whether this would also apply here is unclear, as May's proposal is lacking in specifics.

In addition, while rulings of The European Court of Human Rights are binding, non-compliance is typically without repercussions beyond, perhaps, diplomatic damage. The UK could also easily leave the treaty if it so desired (although this may have political repercussions from the rest of Europe).

Full answer

Violation of the treaty?

There are several applicable articles; for example Articles 5, 6, and 13 deal with this:

Article 5 – Right to liberty and security

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

[..] (a) the lawful detention of a person after conviction by a competent court;

[..]

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

[..]

3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

Article 6 – Right to a fair trial

1. [E]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

[..]

3. Everyone charged with a criminal offence has the following minimum rights:
[..]
(c) to defend himself in person or through legal assistance of his own choosing [..]

Article 13 – Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

It seems fairly obvious that May's proposal would be a violation of one or more of these articles.

However, there is also Article 15, the relevant parts of which read:

Article 15 – Derogation in time of emergency

1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.

So the UK could suspend these rights in times of "public emergency threatening the life of the nation". Whether this is applicable here is a matter for the The European Court of Human Rights (ECtHR) to decide. There is some case law about this; the ECHR has helpfully compiled a summary of applicable case law in a document.

Many of those deal with cases of extradition and claims that this would violate Article 3 (prohibition of inhuman or degrading treatment), but some also deal with the above mentioned articles.

In some of these cases the court ruled there was a violation of the above Articles (e.g. El-Masri v. “The former Yugoslav Republic of Macedonia”, Al Nashiri v. Poland, Husayn Abu Zubaydah v. Poland) and in others it didn't (e.g. O’Hara v. the United Kingdom, Brannigan and McBride v. the United Kingdom). Article 15 was cited in various of those cases.

It will be difficult to predict how the ECtHR might rule in a future case, given that May's proposal is lacking in details (is she proposing about gitmo-style indefinite detention or something else?), and the lack of a specific case to discuss. So at this time it's unclear if May's proposal constitutes a violation.

Repercussion of non-compliance

ECtHR rulings are legally binding, but non-compliance is usually without repercussions. In theory the Commitee of Ministers has the power to "consider measures" (Article 16, section 5 of Protocol 14; but I can't find any examples of this being used.

For example the UK is already not complying with several rulings, such as those on prisoner voting rights. Thus far, a stern warning has been the most serious consequence. In fact, it even recommends that "any member state should withdraw from the Council of Europe rather than defy the Court by not executing judgements". Withdrawing from the treaty is pretty easy under Article 58 and May has already talked about doing exactly that.

This paper concludes that:

[T]here is no in stance of sustained defiance of the Court among liberal democracies, despite the absence of meaningful coercion, impact-minimizing behavior is pervasive.

I have been unable to find specific examples of actual measures being taken for non-compliance (in part, probably, because compliance is the norm), but I have also been unable to find a good source which states this.

Footnote

UK law, as well as other treaties, may also be a hurdle to enact such a policy. For example in the United States there's the fifth amendment. I didn't investigate this, as it's not part of the question.

user11249

Posted 2017-06-06T21:28:03.843

Reputation:

I believe that the UK is also bound to the ECHR under the terms of the Good Friday Agreement. – TRiG – 2017-06-07T00:54:37.140

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Precisely, that's why she has long been in favour of leaving the European Convention on Human Rights.

She said and I quote:

“The ECHR can bind the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of governments like Russia’s when it comes to human rights,”

and

“So regardless of the EU referendum, my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its court.”

She planned to repeal the ECHR and replace it with a British Bill of Rights, where the details where rather sketchy.

However in 2016, Theresa Mays Justice Secretary Elizabeth Truss said that repeal of the ECHR was not currently feasible when she said and I quote

"So the British Bill of Rights is not something we can do at the same time as we are putting through the Great Repeal Bill.

After negotiating Brexit, or if the political pressure from combating terrorism goes up Theresa May is likely to want to go back to her original plan of repealing the ECHR, so it doesn't get in the way of her fight against terrorism. This announcement that she wants to rip up human rights laws

is likely an indication she wishes to post-haste leave the ECHR.

TLDR: Theresa May thinks ECHR gives too much human rights so wants to repeal it and replace it with some British equivalent, realised that it was too hard to do straight after Brexit. Now terrorism is occupying headlines, she wants to dump it so she can arbitrarily jail people she suspects without sufficient evidence to present it before a court.

SleepingGod

Posted 2017-06-06T21:28:03.843

Reputation: 8 037

1As far as I can tell, Theresa May did not say the phrase "rip up human rights laws". You should not put it in a quote block when the other quote blocks are actually direct quotes. – eyeballfrog – 2017-06-06T22:40:53.273

@eyeballfrog You are correct after searching more thoroughly she has not said those exact words, and I have thus removed them from quote blocks – SleepingGod – 2017-06-06T22:42:45.403