ECHR: Wolfson revisited

I promised to stop boring on about this topic but it seems I can’t help myself. It’s inherently interesting and important. General understanding on the right where the ECHR is concerned is poor, and as such, it is easy for politicians such as Badenoch and Farage to sell us a false prospectus.

As you know, I’m very far from convinced that leaving the ECHR is a good idea. My work has focussed on the potential unravelling of the Northern Ireland settlement and the wider repercussions and I now have more questions than answers. I don’t think the right is being particularly honest about it (or being honest with themselves), and I seriously don’t think we have the talent to pull it off. Moreover, I have doubts it will have the intended effect. Rather than preventing lawfare, it could very well see a tsunami of lawfare in order to establish new precedents.

In my view, this ultimately comes down to political will. If a government has a mandate to stop the boats and sort out illegal immigration then it has all the tools it needs to do so.

Firstly, it is necessary to spell out a few basics. I’ve found this parliamentary research briefing very helpful….

In the UK, provisions of an international treaty can only have effect in domestic law if they are written into or incorporated by domestic legislation. Therefore, provisions of treaties that are not made part of UK law (i.e. have not been incorporated) are not usually recognised by UK courts. This reflects the UK’s dualist approach to international law.

This has been confirmed in many domestic cases, including the recent Miller case. The position was summarised by Lord Kerr in R (S G) v Secretary of State for Work and Pensions:

Two dominant principles have traditionally restricted the use of international treaties in British domestic law. The first is that domestic courts have no jurisdiction to construe or apply treaties which have not been incorporated into national law; that they are effectively non-justiciable. The second is that such treaties, unless incorporated into domestic law, are not part of that law and therefore cannot be given direct effect to create rights and obligations under national or municipal law.

In terms of the common law, Lord Sumption Belhaj v Straw4 addressed previous judicial views that “international law is not part of, but is one of the sources of the common law”, when he suggested that:

international law may none the less affect the interpretation of ambiguous statutory provisions, guide the exercise of judicial or executive discretions and influence the development of the common law. Although the courts are not bound, even in these contexts, to take account of international law, they are entitled to do so if it is appropriate and relevant.

Recent commentary on the UK Internal Market Bill reiterated the fact that Parliament in the UK is sovereign, and can in theory make or unmake any law it wishes, even if the proposed laws would violate international law. This is also the official position of the UK Government, as outlined by the Attorney General in response to the same Bill.

This is true for the domestic effect of such an Act of Parliament. But in international law, the UK’s internal principle of parliamentary sovereignty has no bearing on the international legal effect of the UK’s international obligations. This is because no rule of a state’s internal law can be used to justify a breach of an international obligation according to Article 27 of the Vienna Convention on the Law of Treaties.

Furthermore, in the recent Miller case, the Supreme Court discussed the dualist approach to international law and the role of parliamentary sovereignty, stating:

… international law and domestic law operate in independent spheres. … [T]reaties between sovereign states have effect in international law and are not governed by the domestic law of any state.

So, Parliament can in theory make any law it wishes domestically, and the legal effect of its domestic law remains unchanged. But if this breaches an international obligation, it might be lawful in domestic law, but it would remain unlawful in international law.

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There’s a lot there to think about, but the first point that suggests itself to me is that ECHR withdrawal overlooks that non-refoulement is established customary law, so the process would necessarily have to legislate to prevent judges considering it. That begs an important question. If we have to specifically legislate to strike out articles of international law, why not just do that now?

This underscores a lot of what I’ve been saying in recent months. The government can legislate according to its own designs without court interference. It can choose to put itself on the wrong side of international law if circumstances demand it. At that point, it is no longer a matter of law. It is a matter of international diplomacy.

Britain could declare its intention to sideline ECHR in asylum and immigration matters pending a reform initiative - on an indefinite basis if needs be. It would not be the first or the last time a piece of international law had been shunted into a siding without formally denouncing it.

Since a clear majority of signatory states recognise the deficiencies of the ECHR on immigration matters, Britain would have the moral authority to maintain such a position, so long as the broader fundamental principles of human rights are upheld. This is a far more pragmatic and sophisticated approach than denouncing the entire ECHR, risking a broader unravelling of the European legal order.

This would require quite a lot of political nerve to pull off, but in my view it is preferable to the hassle that goes with poking at the Northern Ireland settlement. I’ve already outlined how this could be done, but my view was further reinforced this morning when I had cause to look again at Lord Wolfson’s advice to Kemi Badenoch.

When it was first released I skipped straight to the parts relevant to my concerns about the GFA, but always intended to give it a much closer inspection. Looking over it again, I found the following extract, which entirely confirms what I’ve been saying recently, and rather suggests the Tories have lost their marbles.

Parliament retains the power to pass whatever legislation it wishes, regardless of whether doing so would place the UK a state in breach of international law. Courts are obliged to give effect to that legislation and civil servants are required to obey it.8 Absent incorporation into UK legislation, the basic position is that international law obligations, including international treaties, have no effect on the domestic law of the UK (with exceptions for some propositions of customary international law which are incorporated through the common law).

It follows that no minister or civil servant is subject to a domestic legal obligation to comply with international law—and in particular no minister or civil servant could refuse to follow a domestic legal obligation (especially a statutory obligation) on this basis.

UK judges have no inherent ability to ‘strike down’ legislation that may be in breach of international law. UK courts can sometimes refer to international law, especially to construe legislation that incorporates international obligations, and may seek to interpret common law authorities to reflect international law where possible. It is a principle of statutory interpretation that the courts will seek to interpret legislation in a manner consistent with the UK’s international law obligations, based on a presumption of Parliament’s intent.

However, this “must yield to contrary parliamentary intent”. In other words, provided Parliament’s intentions are clear, the courts have no authority to ignore Parliament’s clear intention in order to interpret legislation compatibly with the UK’s international obligations. It is up to Parliament to decide how, whether, and on what terms to give domestic legal effect to international obligations, including any judicial role in considering whether some public act would place the UK in breach of those obligations.

Parliament can require any such judicial role to proceed on the basis of certain factual premises or within certain limitations. For example, Parliament’s response to the UKSC judgment in R (on the application of AAA and others) v Secretary of State for the Home Department (2023) (“AAA”) was to pass the Safety of Rwanda (Asylum and Immigration) Act 2024, which required courts to assess ECHR/HRA compliance on the factual premise that Rwanda was a safe country (seeking to override the effect of the UKSC judgment in AAA). Similarly, legislation can require the courts not to consider certain international obligations.

It is therefore clear that Parliament could pass stringent borders legislation, even if this was in breach of the UK’s international obligations, and civil servants and courts would be bound, respectively, to carry it out and enforce it.

In my view, Badenoch has made a serious mistake in calling to leave the ECHR. She has made the decision on the basis of politics rather than statecraft. She has asked Lord Wolfson if it is legally feasible and mistaken legal feasibility for political feasibility. She was on a much surer footing by saying we will leave “if we have to”. The bottom line is that we don’t have to. Other avenues are available to us as Wolfson’s report demonstrates.

Wolfson is clear, insofar as the issues are clear, that there is no straightforward option and no silver bullet. Wolfson himself states “It is also important to avoid conflating the politics of leaving the ECHR with the legality of doing so”. He adds “For obvious reasons, this advice focuses on setting out the ’problems’. If the policy decision is to leave the ECHR, further detailed work would need to be undertaken on these options, but it is clear at this point that all would require legislation that would be contentious. Whatever policy is chosen, it will need to be given crystal-clear expression in any future general election manifesto, explaining what steps a future Government intends to take on the ECHR”.

Wolfson does not make any hard and fast recommendations - and his work cannot be considered conclusive proof that ECHR exit is politically viable. There are still a great many questions about what would need to be done and in what order. Wolfson would be a man to ask, but he hasn’t been asked.

These questions have not been satisfactorily answered by anyone on the right. As yet, there is no serious work on how we would leave. Badenoch cannot make any claim to having a serious plan. Wolfson’s work isn’t a “plan” and he would be the first to say so.

Possibly the most pivotal remark in his work is “It is therefore clear that Parliament could pass stringent borders legislation, even if this was in breach of the UK’s international obligations, and civil servants and courts would be bound, respectively, to carry it out and enforce it”.

There would, no doubt, need to be amendments to the Human Rights Act and asylum rules, new judicial guidelines issued, and a broader review of how judges are selected, but if the will exists, the obstacles are not insurmountable. It’s increasingly clear to me that targeted reforms would stand a better chance of working than taking aim at the ECHR. ECHR withdrawal is only on the table because politicians would rather blame the ECHR than admit they could have fixed the problems at any time in the last decade - but chose not to.