Leaving ECHR ‘will stop judges making political decisions'

Telegraph

5 hours ago

Britain should leave the European Convention on Human Rights (ECHR) in order to stop judges making political decisions, a Tory grandee has said.
Lord Lilley, a former Cabinet minister, said the 'vague' terms in which the ECHR was drafted had enabled courts to extend their reach into the political sphere and override parliamentary decisions.
In a report for the Centre for Policy Studies, a think tank, he said the most 'egregious' example was the decision by the European Court of Human Rights to back claims that people should be able to seek redress and compensation if their governments failed to take sufficient measures to protect them from climate change.
He said this extended the reach of the court to environmental matters, which did not feature in the ECHR at all.
This was a consequence of treating the ECHR as a 'living instrument', which enabled the European Court of Human Rights to create new laws in areas never envisaged by original signatory states to the convention, he said.
By giving courts power to interpret vague ECHR rights and override parliamentary decisions, the ECHR transferred law-making authority from elected representatives to unaccountable judges, said Lord Lilley.
'This unavoidably politicises judicial decisions and undermines the rule of law,' he added.
He said he believed the option of leaving should be considered because there was no consensus or appetite for reform, noting that quitting the ECHR or some of its specific clauses had been considered by successive prime ministers, irrespective of party affiliations.
Despite having written the ECHR into British law in the form of the Human Rights Act, Sir Tony Blair asked John Reid, his then home secretary, to consider 'withdrawing from specific clauses' if they led to court rulings that put community safety at risk.
'During his campaign for Tory leader, David Cameron raised the possibility of leaving the ECHR entirely – possibly temporarily – to provoke a renegotiation that, if successful, would enable Britain to rejoin,' said Lord Lilley.
' Theresa May, as home secretary, faced major problems in deporting suspected terrorists and advocated leaving the ECHR.'
Lord Lilley said the UK's withdrawal from the convention would not damage its international reputation or weaken its influence.
'The claim that the UK would become a 'pariah' if we leave the ECHR is a baseless nonsense. No one suggests that Australia, New Zealand and Canada are pariah states, even though they rely on parliamentary sovereignty, common law and domestic courts to maintain their freedoms,' he said.
'On the contrary, they are respected as epitomes of freedom. We would be in the same position as them.'
He said countries would be unlikely to refuse to co-operate with the UK in tackling cross border crime or people smuggling if it quit the ECHR.
'The EU currently works on these issues with states who are not members of the ECHR or any equivalent international treaty covering human rights. It is inconceivable that the EU would spurn such mutually beneficial co-operation with us if we left the ECHR,' he said.
He argued that it would also give the UK greater freedom to reduce the number successfully claiming asylum or refugee status and increase the number of illegal migrants or foreign criminals who could be deported.
'Undermining respect for rule of law'
Home Office data show the proportion of asylum claims resulting in positive approval at first instance in the UK had risen from 25 per cent in 2010 to 67 per cent in 2023.
Although this was partly explained by the higher proportion of applicants from countries like Afghanistan and Iran, 'it may also reflect the increasingly generous interpretation of human rights legislation in the UK which has been incorporated in guidance to officials', said Lord Lilley.
By the end of last year, 42,000 asylum seekers were awaiting the outcome of their appeals, of which around 40 per cent specifically cited human rights.
'This has given rise to suggestions that human rights claims are being made almost automatically in the hope of striking lucky or to delay the process,' said Lord Lilley.
'It is not the fault of judges themselves, but the role imposed on them by the convention to make inherently political decisions, that is politicising our courts and undermining respect for the rule of law itself. I instinctively prefer reform, but that is inconceivable unless Britain is prepared to withdraw until meaningful change is agreed,' he said.
'Leaving would simply mean the UK joining other respected democracies like Australia and Canada that successfully protect human rights through parliamentary accountability without depending on an international court.'