Thread by @stefan_theil

Can the UK leave the ECHR without legal and political repurcussions, unknown consequences and breaching the Good Friday Agreement? No. A brief explainer 🧵1/n

Caveat: if you are looking for wording along the lines of 'The UK shall be a signatory to the ECHR' you won't find it. This is a question of legal interpretation, but the weight of that is heavy, I suggest insurmountable, in favour of requiring ECHR membership of the UK. 2/n

GFA states that 'British Government will complete incorporation into NI law of the European Convention on Human Rights (...)'. And at several points refers to the ECHR as an integral part. Notably, NI institutions and courts need to stay up to date on ECHR jurisprudence. 3/n

1) 'Incorporation' language in GFA is used b/c it presumes and assumes UK membership in a specific int'l treaty (ECHR). That treaty is central to the cross community support for NI institutions.

2) NI public bodies need to stay up to date on ECHR jurisprudence, and apply it to control executive action and strike down NI legislation (yes, I know that is constitutional anethema in other contexts in the UK) but it is required. 4/n

The point is that there is no sensible way for NI instiutions to do so unless the UK is a member of the ECHR. That is because crucial ECHR concepts only work when you have the possibility to bring cases from NI to the ECHR, eg margin of appreciation, derogations and so on. 5/n

Without membership, NI institutions would never be able to get contextualised rulings that respond to the specific ECHR issues encountered. They would always be guessing, and perhaps guessing wrongly, as to what a ECHR decision means when transferred to an NI scenario. 6/n

Without membership, there is thus an inevitable legla diversion between the ECHR jurisprudence and ECHR jurisprudence as understood and applied in Northern Ireland. 7/n

3) You cannot selectively apply the ECHR to only NI. In international law terms, that would be considered a reservation (Art 19 Vienna Convention on the Law of Treaties). The problem is that Article 1 ECHR arguably prohibits such geographic restrictions from the outset. 8/n

But even if you do not think so (there are geographic limits from signatories) the entire UK has been subject to the ECHR from its inception. If one were to make reservations to carve out NI, the time to do that was 1951 upon ratification) not 2023 (Article 19 (b) VCLT). 9/n

And at the very least, joining the ECHR as the whole of the UK and then limiting its application to only NI would likely be considered incompatible with the object and purpose of the ECHR (Article 19 (c) VCLT). 10/n

Even if such a reservation were accepted by some miracle, we need to think through the implications. This would be an inevitable divergence of Northern Ireland from the rest of the UK in virtually all areas of law. I do not have to tell you what that means to Unionits. 11/n

You may intensly dislike the ECHR, the living instrument approach and you may even think that NI is a peripheral concern next to 'solving' the refugee and immigration issue. (I think all of that is profoundly wrong, for what it is worth) 12/n

But: there is absolutely no way the UK can leave the ECHR without breaching the GFA. The legal and political fate is inextricably linked. Knee jerk suggestions to leave the ECHR to 'fix' policy problems are shortsighted and flirt with legal and political chaos. 13/ends

@oran_doyle Free expression, protest, privacy, environmental protection, heck, labour law, even run of the mill private law.