Badenoch calls time on the ECHR

Kemi Badenoch has announced that the Tory party will leave the ECHR. I am not massively enthused by this news. There are too many unanswered questions. She says “The road ahead will not be simple. Lord Wolfson is clear that leaving the ECHR does create technical and political challenges.”

Well indeed. While Suella Braverman‘s report contains some wildly optimistic assumptions, she does at least recognise that we continue to be bound to the ECHR for as long as the Windsor Framework is still in effect. She notes, quite correctly, “Any meaningful withdrawal from the ECHR must confront the legal asymmetry embedded in Article 2, which has effectively preserved a second-tier legal regime in Northern Ireland. Without amending the Framework and its constitutional base in the Belfast Agreement, the United Kingdom risks entrenching a permanent legal border within its own territory, jeopardising both legal coherence and political unity.”

But the problems don’t stop there. Any future Labour government would implement the WF convention that what goes for NI also goes for GB, so in a roundabout way, we could end up being bound in perpetuity by ECHR - obtained via Northern Ireland, which would be the epicentre of lawfare. As such, full departure from the WF is necessary, bearing in mind the GFA and Withdrawal Agreement cannot be amended unilaterally without collapsing the entire settlement.

There is a principled case for doing this, not least because the WF stinks to high heaven, but in doing so, it opens up that which was settled in Article 50 talks, and we’re back to protracted diplomacy over where the border goes and how it functions - while reigniting a lot of unpleasant NI politics.

I have yet to see a convincing argument as to how this debacle might be avoided. Is this really the priority for 2029 onwards? Is this really the hill you want to die on? If so, you’re going to need detailed plans and it cannot rely on recycled Brexit era “WTO rules” shtick from the ERG. It will likely involve another messy compromise and you have to set out why it’s preferable to the status quo, and what’s actually wrong with disapplying ECHR from immigration considerations. When the Supreme Court cannot overturn primary legislation, why is this worth the hassle Kemi?

I has hoped for a more pragmatic policy that would at least attempt some kind of statecraft first before committing to departure. I’ve outlined several times on here how I think that could be done, but I suppose the politics of it doesn’t really fly. Through a steady drumbeat of misreporting, it has become an article of faith on the right that the ECHR is the whole of the problem rather than degenerate British judges, and while more nuanced approaches are viable, the Tory track record of duplicity and failure means Mrs B doesn’t really have any wiggle room.

The problem, however, is it won’t work. The right does no believe the Tories will go through with it, and many in the party would lose losing the whip over this issue. Even an ardent critic of the ECHR like me can see there is still a principled case for remaining. International treaties of this type can be a powerful diplomatic tool in the right hands.

Ultimately, this policy won’t be enough to win back trust. Especially not if voters can get the same commitment from Reform. The Tories would have to either better their offer or take a completely different tack - neither of which seems feasible. The Tories will continue to struggle for relevance.

Either way, I think the writing’s on the wall, and we probably will leave the ECHR one way or another. Public patience has run out, and voters are not in the mood for technical arguments. This is one of those times where the politics trumps the finer detail. We’re going to find out the hard way that leaving the ECHR is by no means a silver bullet and does not put an end to lawfare. In fact, we are likely to see the mother of all political rows over this - eclipsing everything else. If the intention is to start another Brexit scale political battle, this will do it.

What is absolutely certain, is that the status quo simply cannot hold. If Labour wishes to avoid ECHR exit then it must demonstrate that it isn’t the obstacle the right says it is, and the only conclusive proof the public will accept is if Labour stops the boats. That could, perhaps, be done by resurrecting the Rwanda legislation and reforming the HRA, going a long way towards taking the wind out of Refrom’s sails, but to do that would mean going up against the left of the party and siding with the British people. That’s the very last thing they would ever contemplate - even to save their own skins.

For my part, I’m reluctant to embark on such a massive legal transition without a clear idea of the landing ground. Badenoch says “We will return to common law and statutory protections, focused on democratic legitimacy and ensuring a proper balance between rights and responsibilities” but I still want to know what that looks like in practice, because I’m not taken with Starkeyite nostalgia for 1996. Our constitution is in serious need of modernisation and democratisation.

This point is underscored this week. We have a hapless, trainwreck of a government that couldn’t even make it through a year without hitting the rocks and we’re stuck with them until 2029 whether we like it or not. This, to me, is not democracy. As with Brexit, the cause of our problems is much closer to home. We will find again, after fudge and compromise, that ECHR exit does not deal with the rot at the heart of the British establishment. There are much bigger battles to come.