Solicitor Rubin Italia comments on the UK government’s recent proposals to leave the European Convention on Human Rights as part of their push to crackdown on illegal migration in the International Bar Association’s Global Insight magazine.

Rubin’s comments were published in IBA Global Insight, 11 October 2023, and can be found here.

“The UK government’s threat to leave the ECHR has already created friction on certain legal issues. One such issue concerns the retention of DNA and fingerprint data by the government on police databases, even if the investigation was no longer active, which was deemed unlawful by the ECHR as it amounted to the harvesting of innocent people’s data. This is one of a number of issues, and we are undoubtedly only going to see an increase in such tensions over the coming months.”

“While the UK is already able to set its own laws and legislation with autonomy, these laws have a fundamental right to be challenged on human rights grounds, including freedom of torture, the right to family and the right to private life amongst others.

“The notion that the UK needs to be in charge of its own laws is nothing more than a paper tiger. The government is veiling their policy of autonomy within a post-Brexit ideology, which appears to be playing politics rather than dealing with the substance of these complex legal issues.”

“The implications of leaving the ECHR are wide-reaching and could have enormous impacts on the UK legal system and the right to justice in general.

“One implication of leaving the ECHR is that there potentially could be no right to challenge HR decisions at that court.

“However, it should be noted that lawyers in the UK used to make reference to the ECHR and rely on its provisions prior to the ratification of the Human Rights Act, and courts would also accept such submissions. It remains to be seen how lawyers and the courts would deal with this context were the UK to leave.”

“Should the UK leave the ECHR, lawyers and their clients would not be able to plead the Articles in all practice areas, and this would limit their ability to challenge the government. A significant part of the ECHR has been used in public law challenges against the government with a great deal of success, including the recent challenge to the Rwanda policy which is currently awaiting its appeal after a successful challenge in the lower court.”

“The ECHR is part of UK law within the Human Rights Act 1998, therefore this would have to be repealed by parliament. However, the UK is also a signatory to the ECHR and it is unclear as to how the country could extricate itself from signing such a treaty.”

“While the impact on domestic laws is currently unknown, it will undoubtedly impact every practice area from family law and child care through to ancillary relief through to town planning. For instance, the recent ULEZ policy from Sadiq Khan is a direct result of a public law challenge to the government’s policy, based partly on human rights grounds, which was a success.”

“Most countries are engaging with the ECHR and following it correctly, with only two countries having left – Greece and Russia.”

“Currently no other countries are motioning to leave the ECHR, which leaves the UK as somewhat of an outlier in this regard.”

“It is highly unlikely that the UK will leave the ECHR due to the fact there would also be a significant backlash from businesses and corporations, as the EU has threatened issues regarding trade agreements which would put significant pressure on the UK government to find an alternative approach.”

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