Theresa May suggested during the referendum campaign that she supported withdrawal from the European Convention on Human Rights. The immediate prospect of this has receded, the government is busy enough with Brexit, but how this would be done, and the difference from Brexit, is another way of showing why the High Court got the Article 50 decision wrong.
Article 58 of the Convention provides
1. A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months’ notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties
Only one state, Greece under the generals in 1969, has ever invoked this provision. The relevant actor for the UK in international law is, as for all states, its government. If the UK government gave such notice, six months later the Convention would cease to apply to the United Kingdom in relation to subsequent acts and we would no longer be within the jurisdiction of the court.
What would be the impact in UK domestic law if that were all that were done?
The Human Rights Act
The Human Rights Act requires UK courts to seek to interpret legislation in a way that s compatible with Convention rights, and makes it unlawful for public bodies to act in a way that is incompatible with them. The relevant rights are set out in Schedule 1 of that Act. The UK’s withdrawal from the Convention would have no impact upon this. The Convention binds signatory states in international law. The rights we have as individuals as a matter of UK domestic law are not contingent upon their continued existence. The Human Rights Act and all the rights incorporated by it continue to apply until it is repealed. The government cannot, through its prerogative action, overturn our statutory rights. Nowhere in the Human Rights Act is it stated that the applicable rights are dependent upon the UK’s continued accession to the European Convention.
If the Human Rights Act were repealed, while the UK remained a signatory to the Convention, the UK would subsequently be found repeatedly in violation of Article 13 (“right to an effective remedy”). The reason that Article is not included in Schedule 1 is that the Human Rights Act itself is what ensures that the UK has an effective remedy for Convention violations before its domestic courts.
The European Communities Act
The European Communities Act is quite different. It does not set out what the rights that are created under EU law that are given force are. Rather it incorporates them by reference, and they change (“from time to time”). If therefore EU law ceases to apply to the United Kingdom it ceases to be incorporated by the European Communities Act.
The reason why notice under Article 50, and the expiry of 2 years, operates to terminate EU law as incorporated into UK law is because that is what the European Communities Act says. The prerogative is not being used to repeal any statutory rights. There would be no need to repeal the European Communities Act at all.
If the European Communities Act were repealed, without notice under Article 50 being given, this would place the UK in violation of international law: it would have broken what is now the Treaty of the European Union.
Fortunately, nobody rational now seems to be suggesting that as a way forward.