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Beware the bear-trap of leaving the ECHR

3 min read

There is an often overlooked reason why leaving the European Court of Human Rights (ECHR) would be a bad idea and it should matter to the Conservative MPs said to be considering this a vote winner at the next election.

That is because the UK’s commitment to the ECHR is not simply about human rights but also critical to criminal justice in this country. 

One of the successful elements of the EU-UK Trade and Cooperation Agreement forged with our European counterparts post-Brexit, was Part Three, which ensures law enforcement cooperation with our European neighbours continues to apply on matters of criminal justice.  It means our police can continue to access and share intelligence with their equivalent agencies in Europe on things like DNA, fingerprints and criminal records. It means cooperation on areas like extradition and mutual legal assistance endures.

Crucially the terms of Part Three offer the possibility for this to be terminated or suspended should either party denounce the ECHR. Let’s hope that is not where we are heading.

Not only is Part Three key for cooperation with our European neighbours over the challenge of trafficking across the channel, it is also essential for our ability to police other crimes effectively in this country. We know that crime of all descriptions increasingly involves evidence overseas whether the issue is fraud, money laundering, rape, murder or drug supply.  The loss to our police forces, the NCA, the FCA, HMRC and other state agencies of the intelligence we currently access from their European counterparts would be seriously damaging and a retrograde step. 

When it comes to criminal justice, British isolationism would be a travesty. And given the Tories are traditionally a party of law and order, surely it would be anathema to their rank-and-file supporters if the detection of crime was hampered because vital cooperation with our European neighbours on criminal justice was hampered as an unintended consequence of leaving the ECHR?

The House of Lords justice committee wrote recently to Suella Braverman highlighting that risk in the context of the Illegal Migration Bill. It drew attention to the potential negative impact that deficiencies in the protection of ECHR rights would have on international cooperation on crime, concluding termination or suspension of Part Three of the TCA would have extremely serious ramifications for UK-EU security cooperation, curtailing our ability to combat cross-border criminal activity.

The Tories currently on August manoeuvres about the idea of wholesale departure from the ECHR should heed this warning. There could be a real beartrap here for them – not to speak of others – if it ever became official policy. Let’s hope Rishi Sunak sticks to his guns and never lets that happen for all our sakes.

Rebecca Niblock is a criminal litigation partner at law firm Kingsley Napley LLP

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