Should this Newsletter be Peer-Reviewed?
In the past week the European Convention on Human Rights (ECHR) has once again entered into the headlines. More specifically the prospect of the UK leaving the Convention has come up because the Tories have suggested that they will campaign to leave if they do not get their way on the controversial Rwanda policy.
As a reminder that case is still due to go before the Supreme Court after the Court of Appeal found against the government by a slim majority. Meanwhile the European Court of Human Rights has already got involved after that body issued an interim measure to ground a plane full of migrants that the UK planned to send to Rwanda. The court may get involved again if further appeals are launched once the UK Supreme Court has made up its mind.
Unsurprisingly all of this has sparked an ideological debate about whether the UK should leave or remain only a few years after Brexit.
One think-piece that caught the eye of a lot of legal minds on Twitter was written by Professor Richard Ekins of the University of Oxford for the website ‘UnHerd’.
In the article Ekins makes the case for leaving the ECHR and, in a similar fashion to the Brexit debate, focuses on taking back control of sovereignty from the European Court of Human Rights back to Parliament so that it is free to legislate as it sees fit.
Overall it is quite the polemic but that should come as no surprise. As I have mentioned before, the key to these sorts of pieces is to follow the money. Ekins is the Head of Policy Exchange’s Judicial Power Project, a notoriously opaque, right-wing thinktank.
The actual content of the piece belies the unserious nature of the argument. Ekins spends most of his time wailing against a Guardian video from 2016 that celebrates the ECHR (which he describes as agitprop) and criticises the fact that rights have evolved over time (a development which he admits started as long ago as the 1970s).
Alexander Horne is a barrister who also wrote a piece about the ECHR this week. His work in The Spectator (not exactly known for being left-wing) is a much more balanced look at the debate and ultimately concludes that there are number of good reasons to remain a signatory and exiting would not actually solve the migration problem that the government has.
The debate then spread onto Twitter (or ‘X’ as it is now known) and Horne disagreed with the Unherd blog for a couple of key reasons:
While Ekins seems to take it for granted that “[t]he Strasbourg Court’s Rule 39 practice is incompatible with the text and structure of the ECHR”, Horne suggests that this is not necessarily the case and that the interim measure was not so surprising given that transferring the applicants to Rwanda would have deliberately moved them outside of the protection of the Convention.
Ekins’ argument in favour of sovereignty actually works against him. The European Court of Human Rights provides an essential bulwark against an executive that seeks to overreach and impinge on individual rights.
This is all in addition to other arguments in favour of remaining a party to the Convention such as the Good Friday Agreement and our relationship with the EU and other Western powers.
Paolo Sandro, an academic at the University of Leeds, suggested that Ekins’ Rule 39 argument would not survive any sort of peer-review and this led to a debate about whether peer-review simply confirms ideological norms.
At the end of the day that shouldn’t really matter. Whether you are reading an academic article in a world-renowned journal or a Substack like this one you have to make your own judgment based on the arguments being made.
Unfortunately for Professor Ekins his arguments just don’t stack up to much whatsoever.
This week on the podcast gang violence in Birmingham produces a legal debate about standards of proof and the right to a fair trial.
Episode link: http://uklawweekly.com/2023-uksc-27/
Make a difference today,
Marcus