Could leaving the ECHR threaten British trade with Europe?

Both the Conservatives and Reform UK have said they would withdraw Britain from the Convention and repeal its domestic application, the Human Rights Act. Despite the ECHR underpinning many international agreements, Reform UK has provided less than a page of detail on the legal approach to its potential replacement.

After nine months of intense negotiations, the Trade and Cooperation Agreement was agreed upon by UK and EU officials on Christmas Eve of 2020. It is a 2,000-page document of unprecedented scope on finance, security and trade, and it is dependent on the ECHR.

Although there are clauses within the trade agreement which could enable the EU to terminate it upon British ECHR withdrawal, some experts are sceptical it would lead to a total suspension of trade.

One of them is Professor David Collins, senior fellow at the Adam Smith Institute and specialist in the law of the World Trade Organisation.

Collins said that while the EU would not be entitled to bring a breach of agreement, any future trade negotiation in the absence of a shared Convention on Human Rights with the UK “will be like pulling teeth”.

“They’re going to make any kind of negotiation horrendous, it could involve concessions or threats, it will be messy and unpleasant, anyone who’s followed Brexit could see that,” he told LBC in an interview.

He said a renegotiation could potentially lead to a worse deal for the UK, “especially with a weak government like Starmer, May or Johnson”.

"The ECHR’s influence extends beyond trade agreements. The UK’s adherence on data protection also allows for the free flow of data between the two parties.

Law firm Bates Wells argues that the UK’s withdrawal would risk the cessation of data sharing, upon which £85 billion of UK exports depend, according to 2020 estimates.

Dr Frederick Cowell is a senior law lecturer at Birkbeck College and author of several books on human rights law.

He said that replacing the ECHR with a British equivalent would be a "five-year constitutional project," and that rushed changes could cascade, undermining overall investor confidence in the UK.

“The sheer level of uncertainty is likely to be enormous”, he told LBC. Cowell said there is limited patience in Europe for protracted trade negotiations with the UK, and terminating security agreements could send a commercial signal that spooks the private sector and cools relationships.

Dr Powell said that an equivalent effect was seen in South American countries like Ecuador, whose withdrawal from a global arbitration institution, the International Centre for Settlement of Investment Disputes, undermined their economic growth and jeopardised foreign investments.

“The impact would be enormous,” he said. “Unless part of a gradual constitutional reorienting. But that’s not what’s on offer”.

____________________

William Goodrich is a journalist and producer.

LBC Opinion provides a platform for diverse opinions on current affairs and matters of public interest.

The views expressed are those of the authors and do not necessarily reflect the official LBC position.

To contact us email opinion@lbc.co.uk