united-kingdom human-rights european-court-of-human-rights
What effect would leaving the ECHR have on the cases it was used in?
<p>There is a growing interest within the UK for leaving the <a href="https://www.echr.coe.int/documents/convention_eng.pdf" rel="nofollow noreferrer">European Court of Human Rights</a> (ECHR) with a Government and Parliament online petition reaching <a href="https://petition.parliament.uk/petitions/618456" rel="nofollow noreferrer">17,260 signatures</a> supporting this idea. The current government responded to the petition by confirming their commitment to the ECHR.</p>
<p>I am aware that leaving the ECHR would void the <a href="https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2531" rel="nofollow noreferrer">EU-UK Trade and Cooperation Agreement</a> and the <a href="https://www.gov.uk/government/publications/the-belfast-agreement" rel="nofollow noreferrer">The Belfast Agreement</a> but what effect would it have on the cases that involved the ECHR?</p>
<p>For example, the ECHR provides a nice <a href="https://www.echr.coe.int/Pages/home.aspx?p=press/country&amp;c=" rel="nofollow noreferrer">yearly summary for each country</a> of the cases it was involved in. <a href="https://www.echr.coe.int/Documents/CP_United_Kingdom_ENG.pdf" rel="nofollow noreferrer">In 2021</a> the ECHR delivered 5 judgments within the UK that found at least one violation of the ECHR.</p>
<p>There are also instances of the ECHR being referenced in UK courts, for example, in <a href="https://www.mountfordchambers.com/miller-v-college-of-policing-social-media-non-crime-hate-incidents-and-the-right-to-freedom-of-expression/" rel="nofollow noreferrer">Miller v College of Policing</a> where the Court of Appeal</p>
<blockquote>
<p>found that the appellant’s right to freedom of expression under Article 10 ECHR had been infringed by 2014 Guidance on the recording of non-crime hate incidents.</p>
</blockquote>
<p>What effects, if any, would happen to those judgements were the UK to ever leave the ECHR? Would old case law need to be thrown out? Would new appeals be brought forward under the new system?</p>

<h2>Leaving would have no effect on finalised cases</h2>
<p>There is an analogy here when Australia left the jurisdiction of the Privy Council leaving the High Court of Australia as the highest court from which there was then no appeal.</p>
<p>Existing case law would be unchanged (until a new precedent was set). Finalised cases would be unaffected. Cases that had not yet reached the ECHR would be unaffected. The legislation would need to deal with cases that were in progress in the ECHR which would probably be setting a date after which no further appeals to that venue could be lodged.</p>

<p><em>Notes: I'm using ECHR for the <a href="https://en.wikipedia.org/wiki/European_Convention_on_Human_Rights" rel="nofollow noreferrer">European Convention on Human Rights</a>, and ECtHR for the <a href="https://en.wikipedia.org/wiki/European_Court_of_Human_Rights" rel="nofollow noreferrer">European Court of Human Rights</a>, which adjudicates said Convention. Also, I assume the UK <a href="https://en.wikipedia.org/wiki/Human_Rights_Act_1998" rel="nofollow noreferrer">Human Rights Act 1998</a> (HRA) would be repealed as part of ECHR withdrawal, an Act it passed as part of its commitment in the Belfast Agreement.</em></p>
<p>There are four scenarios which I think are distinct:</p>
<ol>
<li><strong>ECtHR judgments against the UK:</strong> The UK government is only bound by the ECtHR because it has agreed to it as part of its membership of ECHR. Leaving the ECHR means ECtHR case law is no longer binding on the UK government. Note I specifically said &quot;government.&quot; The ECHR is a treaty which governments agreed to. The ECtHR is not formally an appeals court and was never directly binding on domestic UK courts. Instead, a negative ECtHR judgment is meant as a trigger for domestic legislative change.</li>
<li><strong>Domestic UK court finding legislative ECHR violation:</strong> This never produced binding case law. Instead, UK courts issue a <a href="https://en.wikipedia.org/wiki/Declaration_of_incompatibility" rel="nofollow noreferrer">declaration of incompatibility</a> as per the <em>HRA</em>. Again, this is a trigger for domestic legislative change and produces no actionable immediate effect.</li>
<li><strong>Domestic UK court finding regulatory ECHR violation:</strong> Unlike Acts of Parliament, domestic UK courts are empowered by <em>HRA</em> <a href="https://www.legislation.gov.uk/ukpga/1998/42/section/6" rel="nofollow noreferrer">s. 6</a> to remedy ECHR violations by public authorities, so long as these were not a result of following parliamentary legislation. This is the scenario the <em>Miller</em> case you cite falls into. On repeal of the <em>HRA</em>, nothing would immediately happen, but if similar cases arise to previous ones relying on the <em>HRA</em>, they would likely have to be newly adjudicated. This isn't peculiar to the ECHR, this is just what happens when legislation changes, and indeed part of the point of changing legislation.</li>
<li><strong>Domestic UK court interpreting legislation and regulations in accordance with the ECHR</strong>: This is the least clear scenario, and will highly depend on how the UK might opt to leave the ECHR. <em>HRA</em> <a href="https://www.legislation.gov.uk/ukpga/1998/42/section/3" rel="nofollow noreferrer">s. 3</a> requires UK courts to interpret legislation and regulations in accordance with the ECHR whenever possible. They could leave old case law intact by specifying that past legislation was enacted with ECHR in mind, and so should continue with that interpretation. Conversely, this scenario could just get folded into Scenario 3, with past precedent no longer binding due to legislative change. A middle ground could also be sought as with Brexit: EU case law is treated as binding precedent, but the Supreme Court (and Scotland's High Court) are explicitly allowed to overturn the precedent, while lower courts cannot (<em><a href="https://www.legislation.gov.uk/ukpga/2018/16/section/6" rel="nofollow noreferrer">European Union (Withdrawal) Act 2018</a></em> s. 6).</li>
</ol>
<p>So in summary, while I'm sure leaving the ECHR would cause quite the political change, from a legal perspective, it's fairly straightforward. Scenarios 1 &amp; 2 I mention above produces no practical legal change, while in Scenario 3, and to a lesser extent Scenario 4, there's not too much different from any other legislative change.</p>
