What is the European Convention on Human Rights? Is UK still subject to ECHR post-Brexit? Tory row explained

The European Court of Human Rights is still relevant to the UK, despite the country leaving the EU - here’s evrything you need to know about it

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A row has broken out between Conservative MPs over the UK's continued membership of the the European Court of Human Rights

The ECHR hit the headlines after blocking a UK flight filled with asylum seekers bound for Rwanda in a controversial new British immigration policy last year. Since then, the High Court has ruled that sending asylum seekers to the East African dictatorship would breach the UK's obligations under the ECHR.

The court and the European Convention on Human Rights is still relevant to the UK, despite the country leaving the European Union in January 2020. Yet certain Conservative MPs, including Cabinet minister Robert Jenrick, have called for the UK to leave the human rights convention, which would make Britain one of the few European nations, alongside Russia and Belarus, outside of ECHR.

Here’s everything you need to know about the international court and why its jurisdiction still applies to the UK.

What is the European Court of Human Rights?

Established in 1959, the ECHR was created to rule on both individual or state cases which allegedly violate the human rights of European citizens. The court itself is based in Strasbourg, France, with 46 nations from a group known as the Council of Europe covered by its jurisdiction. The ECHR provides rulings based on the European Convention on Human Rights.

Which countries are in the Council of Europe?

The Council of Europe is made up of 46 nations and was created in 1943 after a proposal to create such a group of countries came from then-UK Prime Minister Winston Churchill. The aim was to prevent the continent seeing such atrocities that were committed by the Nazis during the Second World War.

Founding members of the council included the UK, Italy, Belgium, Denmark, France, Ireland, Luxembourg, Netherlands, Norway and Sweden, who all signed the initial treaty. Over the years, the council has grown to include most European nations.

The current members of the Council of Europe are:

  • Albania
  • Andorra
  • Armenia
  • Austria
  • Azerbaijan
  • Belgium
  • Bosnia and Herzegovina
  • Bulgaria
  • Croatia
  • Cyprus
  • Czech Republic
  • Denmark
  • Estonia
  • Finland
  • France
  • Georgia
  • Germany
  • Greece
  • Hungary
  • Iceland
  • Ireland
  • Italy
  • Lavtia
  • Liechtenstein
  • Lithuania
  • Luxembourg
  • Malta
  • Monaco
  • Montenegro
  • Netherlands
  • North Macedonia
  • Norway
  • Poland
  • Portugal
  • Moldova
  • Romania
  • San Marino
  • Serbia
  • Slovakia
  • Slovenia
  • Spain Switzerland
  • Turkey
  • Ukraine
  • United Kingdom

Only two countries have ever left the Council of Europe - Greece, which was temporarily suspended in 1967 following a military coup, and Russia, which had its voting rights stripped following the annexation of Crimea in 2014.

What is the European Convention on Human Rights?

The European Convention on Human Rights was created following the Second World War and was solidified in 1953. The treaty was agreed upon by all members of the Council of Europe.

It was created to ensure that nations do not infringe on the human rights of individuals in their respective countries. The convention is made up of several articles, which court ruling can be made on.

This includes topics such as the right to a fair trial, the prohibition of torture and the right to liberty and security. The ECHR made the ruling concerning the controversial Rwanda flights in relation to Article Three from Section One of the convention, which states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Why is the UK still under jurisdiction of European Court of Human Rights after Brexit?

The UK voted to leave the European Union in 2016, with the process being finalised in January 2020. However, the political and economic organisation is a completely separate entity to the European Court of Human Rights, which is not an EU institution.

The UK remains a member of the Council of Europe, meaning that UK human rights cases can still be heard by the ECHR. In December 2021, the UK Government announced plans to reform the existing Human Rights Act, which would potentially give the ECHR less power in enforcing rulings in the country.

Normally, a ruling by the ECHR would be ratified in EU law, but upon changing the Human Rights Act, the UK would not be bound to Eu law in the same way it was as a member.

Will the UK leave the European Courts of Human Rights?

Tory MPs have put pressure on the party leader to remove the UK from the jurisdiction of the ECHR, with Jonathan Gullis, MP for Stoke-on-Trent North, blaming “left lawyers and activists” for the grounding of the Rwanda-bound flight.

He said: “It is clear that the ECHR prevented the flight from departing, after efforts in UK courts were exhausted. The ECHR’s role in UK law needs looking at urgently!” Sir Iain Duncan Smith, former leader of the party, echoed his comments, calling the ECHR’s intervention in the situation “a legal farce”.

Cabinet minister Robert Jenrick also suggested that the UK could leave the ECHR if the Rwanda policy does not go through, when assessed by the Supreme Court. The BBC has reported that senior Conservatives believe the party will campaign in the next election to leave the human rights convention. And a group calling themselves the New Conservatives, made up of the 2019 intake of Tory MPs, is also pressuring Sunak to promise to leave ECHR or hold a referendum of the UK's membership after the next election.

However this has been dismissed by Justice Secretary Alex Chalk, who told the Times in May that there are “no plans to leave the ECHR”, while the paper reports Attorney General Victoria Prentis is also thought to oppose leaving. Veteran MP Sir Bob Neil said leaving would "seriously damage" Britain's international reputation, and make it one of the only countries in Europe to be outside the human rights convention along with Russia and Belarus.

Last year, the then Pensions Secretary Theresa Coffey also dampened calls to leave the ECHR, telling BBC Radio 4: “I don’t think that’s even a question that, I’m aware, is on the table at all.”

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