Back to work!

I have two reasons to be grumpy today. Firstly, after another superb Victory Show, airshow season is over for this blogger and I have to get back to serious work. Secondly, I have to review yet another report on ECHR withdrawal.

Guido reports "Labour’s Straw and Legal Big Hitters Confirm ECHR Exit Doesn’t Affect Good Friday Agreement". This is typically dishonest oversimplification from Guido. The Policy Exchange report itself is undeniably written by heavy hitters (Conor Casey and Richard Ekins), but it is still a piece of legal advocacy rather than an impartial report and it does not explicitly state leaving the ECHR has no effect.

The report is pretty much what I would have written were I taked with defending any future government's position in court should one of the Parties assert that ECHR exit does breach the GFA. The fact they went to the trouble of writing this rather suggests they do anticipate a future legal dispute.

As to the substance of their arguments, they point to ambiguity of the GFA. They certainly have that much on their side because the GFA does not explicitly call for signatory status to the ECHR. It calls for a system of protections in line with the ECHR and this is reinforced in a number of other instruments. The authors make the very bold claim that "The references to the ECHR have nothing to do with the individual right of petition to the Strasbourg Court or, more generally, with the UK and Ireland’s subjection to the Strasbourg Court’s jurisdiction".

That *might* actually be the case - but that's neither here nor there. It's whether all of the parties agree that's what it means. As such, what I think, and what the authors think, is irrelevant. This is going to be an almighty row, and is going to require a number of legislative amendments. the government will be accused of undermining and attempting to scrap the GFA.

Their conclusion states that "If a future government withdraws the UK from the ECHR, the UK’s duty to support the Multi-Party Agreement can continue to be met by maintaining in the law of Northern Ireland limits of the existing kind on the devolved institutions and public bodies exercising devolved power. The simplest way to achieve this end might be in effect to maintain the law of Northern Ireland as it stands, but what matters is the substance of restraint and reassurance, rather than particular legal form".

Again, this is a legal argument you would put to a judge and it all hinges on a judge ruling in our favour. Good luck with that. But they do tend to suggest that ECHR rights (and jurisprudence, one assumes) to a very large extent remains in force in Northern Ireland. I personally take the view that ending access to the Strasbourg court is, in itself, a diminution of rights so far as the GFA is concerned - and I think the Parties will think similar.

The authors assert "In maintaining the substance of the existing limits, or reworking them after negotiations with the parties, the British Government would not be sundering Northern Ireland from the United Kingdom, for the spirit of the Multi-Party Agreement clearly embraces specific and separate provision for Northern Ireland about devolution and the legal limits on devolved power, as well as the acceptance of the case in principle for the enactment of a distinctively Northern Irish Bill of Rights". I do not know if unionists will agree. It depends on what they understand. They are known for wilfully misunderstanding things just to create heat. This is the problem. This is as much a matter of politics as it is law.

Reading the whole report, the authors still make clear the legal complexity of withdrawal, and even if their central case is legally correct, the process of withdrawal cannot be unilateral or be seen to be unilateral. I also do not agree that you can simply phase out elements of the UK-EU withdrawal agreement. I think they're glossing over this. Not that I blame them. I need to examine their argument more closely.

Either way, they make my point for me. We've had this report, and that of Suella Braverman, and that of Peter Lilley, in what are the first volleys in what is likely to be a protracted legal and political argument, and already the issue is starting to chew up the intellectual bandwidth of the right and some of the best brains in the business. And this is only just heating up. The entire debate is now going to get sucked into the minutia of the Northern Ireland settlement when the issue at the top of everyone else's list is immigration.

This might be forgivable were there absolutely no way to resolve our immigration woes without leaving the ECHR but they have not made that case. Nor can they. The only way that could be true is if the ECHR were a sovereign entity as was the ECJ while we were a member of the EU. But it isn't. Parliament is sovereign. So even if these legal luminaries are right about the GFA, and this random blogger is wrong, there still remains the more pressing questions of... why bother? Is this really how we want to spend our time? Should this really be at the top of the agenda for any incoming right wing government?

All the same, none of this will matter to those hellbent on leaving the ECHR. There is are now two papers from prestigious authors who make the case that ECHR exit does not breach the GFA, and that’s all exit advocates need to avoid confronting the issues. As with Brexit, the debate will not be a dabte. Rather, it will be a game of Top Trumps where the source with the most institutional and reputational prestige carries the argument, regardless of the quality of argument. This will be most tedious.

___

Now that plane spotting season is more or less over for me, I’m now turning to other types of fun. The website is very nearly complete, and content editing is well under way. I’m still on track to launch sometime in September, though I’m giving myself a few extra days for procrastination. It’s important work… but it is boring.