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.
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
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).
Violation of the treaty?
There are several applicable articles; for example Articles 5, 6, and 13 deal
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
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
(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
[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.
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.