The European Convention on Human Rights (ECHR) is a treaty signed by 47 states in the Council of Europe, designed to ensure the fair treatment of people across Europe; the signing states commit to protecting certain rights and abiding by certain behaviour.1 The ECHR also established the European Court of Human Rights (ECtHR). Signing states can be bought before the court by people who believe their convention rights have been infringed. These States also agree to be bound by decisions of the court and consider all decisions of the court. In the UK, the ECHR has been adopted into our law through the Human Rights Act 1998, which gives courts the power to enforce the rights in the Convention, interpret legislation to be in line with the ECHR and to declare Acts of Parliament as incompatible with the ECHR.2
The ECHR, through the Human Rights Act, has bestowed a large amount of power on both national and international courts, but in the last few years there has been a lot of talk about the UK withdrawing from the ECHR. Recently, this subject has come back into public discourse following the attempts by the government to deport asylum seekers to Rwanda. In a quick, interim measure, the European Court blocked the first flight to Rwanda. Afterwards, Boris Johnson and other government spokespeople refused to rule out the possibility of leaving the ECHR.3 This isn’t the first time this has been discussed; in 2016 Theresa May said that following the Brexit referendum the UK must leave the ECHR as it “can bind the hands of Parliament.”4
Considering this, we must ask; how does the ECHR protect women’s rights? How realistic is it that the UK will leave the ECHR? And what does the future look like for women?
How does the ECHR protect women’s rights?
The implementation of ECHR into UK law has provided women with a means of holding public authorities to account. Over the years there have been a number of significant examples of how the Human Rights Act and the ECHR have been used to protect women’s rights, such as ensuring the fair treatment of older women in care homes and enforcing stronger protections for survivors of domestic violence.5 Notably in 2018, Article 3 of the ECHR (protection from inhuman or degrading treatment) was used by the victims of John Worboys (the Black Cab Rapist) to seek justice from the Metropolitan Police for the mishandling of their case. Following this case, the Met Police had to pay compensation to the victims and change how they responded to violent crimes in the future.6
The ECHR has proved a valuable resource through which women can hold authorities, and notably the police, to account. The importance of the Convention Rights has been best expressed by Pragna Patel, Director of Southall Black Sisters, who said: “The Police have a duty to protect women…If they fail in this duty women are disproportionately left at risk and must be able to invoke the Human Rights Act.”7
How realistic is leaving the ECHR?
While the growth of anti-European sentiment continues to grow in England, leaving the ECHR is more complicated than just withdrawing from the treaty.
At a domestic level, leaving the ECHR would mean repealing the Human Rights Act. While this is entirely possible, it would be a complicated endeavor. Not only would it leave the UK without a “codified and legally binding human rights instrument,”8 but it would require the amendment of many other pieces of legislation, such as devolution legislation. Domestically, while complicated, it is not impossible to leave the ECHR.
At an international level, leaving the ECHR becomes significantly more complicated. UK membership of the ECHR is a requirement entrenched in multiple international treaties and therefore leaving the ECHR could result in the UK violating international law. Notably, The Good Friday Agreement is one of the treaties requiring the UK’s membership to the ECHR. To leave the ECHR would violate this delicate treaty. Theoretically, Northern Ireland could remain signed to the ECHR while the rest of the UK leaves and this would not violate the Good Friday Agreement. This, however, is unlikely as it would create two different standards of human rights across the UK and would still be interfering in the highly delicate balance established by the Good Friday Agreement.
Leaving the ECHR is unlikely for the foreseeable future as it would be highly complicated. The UK would have to tread a fine line balancing different international treaties and would risk disrupting the dynamics between the devolved areas of the UK, however, there are other potential amendments that have been discussed which could still heavily impact women.
What does the future look like for women?
Currently, aside from discussions post the Rwanda flights, there are no concrete plans to leave the ECHR, however in June 2022 a Bill of Rights Bill was published, proposing to replace the Human Rights Act, while remaining a member of the ECHR.9 The bill would give effect to the Convention rights and creates a duty to comply with the ECHR and allows the court the power to declare incompatibility. Unfortunately, the bill would also make it harder to hold public authorities to account by making it harder to bring a claim in the first place, removing the courts’ ability to interpret laws to be compatible with the Convention and making the courts defer to the government on a wide range of issues.10 Moreover, under the Bill of Rights bill, courts would not be able to interpret rights to create positive obligations on public authorities.11 The creation of positive obligations was used by the Supreme Court in the Worboys case to improve response to violent crimes and improve the experience of rape victims across the Metropolitan Police and the removal of this ability would limit the extent to which public authorities have to change their behaviour after court cases.
It is important to note that the future is not bleak. The proposed bill has been tabled since Liz Truss took over as Prime Minister. In relation to the ECHR, Liz Truss has mentioned that she would be willing to leave the ECHR if attempts to reduce the power of the European Court do not succeed.12 Therefore, we can expect other bills similar to the Bill of Rights bill in the near future. The exact details of this attempt to reduce the influence of the ECHR remain to be seen, however, a reduction in the courts power should be expected. This will undoubtedly have a negative impact on women’s rights in the UK and ability to remedy injustices, however it must be remembered that the Human Rights Act and the ECHR are not the only instruments protecting women’s rights. The Sexual Offences Act 2003, which has been recently updated to include new offences such as voyeurism, and the Equality Act 2010, which lists sex as a characteristic protected from discrimination, are just a few examples of legislation that protect women in the UK.13
In summary, it is unlikely that the UK will leave the European Convention on Human Rights in the near future, however, it is almost certain that there will be attempts to reduce the power the domestic courts have by amending or repealing the Human Rights Act. This will reduce women’s ability to receive compensation or redress for infringements of their human rights, but, importantly, will not completely remove their ability to hold bodies to account through the court.
Written by Emily Wanstall