A missed opportunity for Badenoch

Kemi Badenoch has announced her party’s intention to withdraw form the ECHR. Her decision, she says, is based on Lord Wolfosn’s extensive report. At 185 pages long, it’ll take me a few days to form a concrete opinion on it, but skim-reading the relevant parts did not fill me with confidence.

The problem with these legal opinions is that they are contestable legal opinions - and they most certainly will be contested. Lord Wolfson’s somewhat guarded opinion is that: “there would be no basis for the courts to rely on Article 2 of the Windsor Framework Agreement to disapply legislation that sought to (i) authorise the government to denounce the ECHR, or (ii) to repeal the whole or any part of the HRA”

It is safe to say that not all parties will agree - and this will be the basis of the first of many rounds of lawfare and acrimonious bickering. The Windsor Framework, though, (as I understand it) certainly does uphold EU asylum law and fundamental rights. That could be a problem.

Irrespective of ECHR withdrawal, the Windsor Framework is likely to be problematic in that ECHR withdrawal also demands a series of further repeals and reforms that will almost certainly catch the attention of the EU. The influence of the Windsor Framework should not be underestimated...

“The Dillon case makes clear that Parliament needs to pay far greater attention to the Windsor Framework; not as a legal curio that only occasionally escapes its provincial relevance, but as a powerful source of law which impacts law-making and laws which are intended to apply on a UK-wide basis”.

And that’s the point here. ECHR withdrawal cannot be a standalone action. It is the first among many reforms required to do the job completely, that will almost certainly clash with hard treaty law - and will require a complete reworking/repeal of the HRA.

Lord Wolfson goes on to say “In any event, it remains open to Parliament to prevent use of the European (Withdrawal) Act 2018 (as amended) and the Windsor Framework Agreement to challenge a decision to denounce the ECHR. It is open to a future government to invite Parliament to pass legislation authorising denunciation that expressly also disapplies the European (Withdrawal) Act 2018 (as amended) and records Parliament’s conclusion that ECHR membership was never underpinned by EU law”.

My first thought on this is... good luck with that. You are talking about, in effect, unilaterally amending a treaty. This could be interpreted by the EU as an effective withdrawal from the entire Northern Ireland Brexit settlement. Suella Braverman hinted earlier this year that this would essentially be the case, and now we get more or less the same from Lord Wolfson.

My question to Kemi Badenoch and Lord Wolfson, is why should we go through all of this constitutional upheaval? The case for doing so is pretty threadbare. The most egregious ECHR rulings come from British judges and British courts, and this could be remedied with some relatively unobtrusive amendments to the HRA and immigration/asylum law - as was attempted by the Safety of Rwanda Act. Can it be said that an entire parliamentary term of legal wrangling and constitutional tinkering is worth the trouble when the immediate concern is sorting out immigration?

The issue for me is that any right wing government in 2029 may end up with a large majority but a shallow mandate, much like Labour has now. As such, it will have a year (or less) to affect meaningful changes before public opinion starts going south. ECHR exit will take a minimum of two years (not including all the subsequent domestic legal reforms). If the government takes the view that no deportations can take place until this process is complete, then the borders remain porous.

My broader view is that this transition should not be attempted without a clear and legally sound plan that nails down the destination.

Lord Wolfson sets out seven potential landing grounds, and the Conservative party seems to have settled on Option 7: -- “existing legislative rights, the common law and future legislation. This option involves withdrawing from the ECHR and repealing the HRA without enacting any replacement UK Bill of Rights (or similar). This would mean that Parliament would have primary responsibility for determining what rights should be protected, with the bulk of these contained in existing statutes (many of them pre-dating the HRA), along with new statutes drafted to a high level of specificity rather than as broad principles, and supplemented by the common law”.

This is, putting it politely, ambitious. It will require a full analysis and Badenoch should be aware that this will chew up all of parliament’s runtime for the duration. Thirty years of constitutional evolution is not undone at the stroke of a pen - and may not be accomplished in a single term. If it is not done well, it could easily trigger a constitutional crisis.

There are many on the right who believe this wholesale reboot is necessary, and that we essentially need a constitutional revolution. I am not convinced. Many of our problems can be eliminated with precision amendments. For example, according to James McSweeney, if we wish to eliminate DEI policies from British life, it would be very easy to do. If we remove Part 11 from the Equality Act 2010, almost every diversity scheme becomes illegal overnight.

I think it would be a smarter approach to at least attempt an interim reform bill containing all of these amendments. Meanwhile, ECHR is reformable by way of principled non-compliance on immigration matters. The UK has the clout to do this, which is preferable to risking the collapse of the entire European system of international law.

As much as anything, the right will not trust the Tory party on this issue. The party (what’s left of it) is divided on this issue. Potentially fatally. Already, prominent party members have voiced their concerns. Writing in Conservative Home, Robert Buckland observes:

The risks are nowhere greater than in Northern Ireland. I have seen arguments that make the case that there is nothing in The 1998 Good Friday Belfast Agreement that would prevent us leaving. This argument is flawed, because it ignores the political reality, which is that both traditions, and particularly the Republican/Nationalist community, which did not have faith in the police, security forces or judicial system, agreed to share power only because their fundamental rights would be safeguarded through the Convention. A Border Poll that could endanger the Union with Northern Ireland, will be made much more likely by withdrawal.

The devolved institutions in Belfast are explicitly bound to act compatibly with Convention rights. Brexit has made things even more complex. As the law currently stands, Article 2 of the Northern Ireland EU Protocol, which means that there can be no diminution in existing rights, inevitably includes ECHR rights as well. Removing that guarantee would not be some minor legal tidying-up exercise; it would destabilise the delicate balance that has preserved peace for a generation. To imperil such a settlement would be reckless in the extreme.

There’s a lot to be said for this. All the pro-exit reports on ECHR withdrawal so far have downplayed the significance of the ECHR in the Northern Ireland settlement, relying on legal sophistry and loopholes, while ignoring the basic underpinning principle as outlined here.

Where I differ from Buckland is that I do not regard the existing NI settlement as sacrosanct. I just believe that if ECHR exit advocates believe we must abandon the Windsor Framework and GFA (which seems likely to me), they should have the guts to say so.

I’m largely ambivalent on ECHR exit but if we are going to do it, we must be honest about all of the potential consequences, and if it is to be done (in the name of national sovereignty) then it requires withdrawal from all the flanking conventions and treaties. I do not believe the Tories will do this, thus we will end up with another dysfunctional fudge.

The greater fudge is to pretend that this the legal and political issues can be dealt with separately. Yet, in Northern Ireland - as long and bitter experience shows - the two are irretrievably inter-twined. And much the same goes for the EU, where any dispute would end up in the ECJ which, as we all know, is a political court.

Since the primary objective is to sort out immigration, which does not require ECHR exit, I’m inclined to think it isn’t worth the bother. Wolfson does say leaving has its complexities and that: “significant political capital will be required to effect a policy to leave the ECHR”, while asserting that “none of these complexities is insurmountable”. Therein is a tacit admission that leaving is not going to be a quick and easy process.

He does not even begin to address the political complexities (he only deals, unconvincingly, with the legal issues), so neither he nor Badenoch can hazard a guess as to how long the process will take - or what the final form will look like. Anyone with any real understanding of contemporary politics will readily agree that most of the first term of any Tory government will be taken up with implementing legislation and fighting off the lawfare. Since the rest of Badenoch’s programme depends on this (according to Badenoch), her deportation timescale becomes a work of fiction.

This seems like a missed opportunity for Badenoch, who could have set out a realistic and pragmatic approach, keeping ECHR exit as a backstop, thereby presenting the Tories as an alternative to the vacuous posturing of Reform. But now they’re competing on the same pitch, with an abysmal track record to contend with.