Badenoch's ECHR dilemma

One of the reasons I write is to discover what I actually think. That’s very often a process, and I will often change my mind. I’ve written a lot about immigration policy and the ECHR, but lately I’ve given more thought to practical implementation of policy. I’m completely unconvinced that “mass deportations” is a viable proposition, and while some laws may be desirable (like banning the burka) they may be unenforceable and largely symbolic. Our thinking has to be how we exert maximum effect for the minimum political cost.

On the ECHR front, I’m again less certain. Like most on the right, I would dearly love to take a wrecking ball to the entire post-1945 rules-based order, but I think this is fantasy politics. Most hardline politicking is self-indulgent. It has its uses in terms of moving the Overton window, but we still have to acknowledge reality.

The reality is that leaving the ECHR is no small undertaking. It is fraught with technical and political challenges (not least Northern Ireland) and may not be worth the political upheaval when it isn’t a silver bullet for our immigration woes. My heart takes the absolutist line but my head says something different.

The bottom line is that the ECtHR itself is relatively restrained in immigration cases. It only intervenes when there’s evidence of serious harm (e.g., torture or death) or a clear breach of rights. Its immigration-related interventions are limited. The ECtHR rarely blocks deportations unless there’s a clear risk of serious harm. The ECtHR ruled against the UK in fewer than 20 immigration-related cases between 2010 and 2020. The most egregious cases off come from British judges in British courts. The Human Rights Act is the worst offender.

The Human Rights Act 1998 incorporated into UK law the rights contained in the ECHR. This was to make the Convention rights enforceable directly in this country. The Act makes a remedy for breach of a Convention right available in UK courts, without the need to go to the court in Strasbourg. Part of the rationale for the HRA was to speed up cases and reduce the costs to make the ECHR accessible to all

The HRA has since seen a conveyor belt of cases, and spawned an entire industry of human rights litigation. It could then be argued that denouncing the ECHR is less important than repealing the HRA. Deleting the HRA would dramatically reduce the number of cases.

As I now understand it, primary legislation can disapply aspects of ECHR and the Refugee Convention and there's little the supreme court can do about it. The ECtHR could overrule. Whether it would is a matter for debate.

In terms of immigration we would also have to leave the 1951 UN Refugee Convention and 1967 Protocol, UN Convention Against Torture (CAT), International Covenant on Civil and Political Rights (ICCPR), and UN Convention on the Rights of the Child (CRC).

Laws like the Asylum and Immigration Appeals Act 1993, Nationality, Immigration and Asylum Act 2002, and Borders, Citizenship and Immigration Act 2009 (Section 55, protecting children) enshrine non-refoulement-like protections or family considerations. Repealing these would be necessary. It requires extensive legislative overhaul. Since all repeal actions would have to be taken if we did leave the ECHR, we are as well doing them all first with ECHR exit held back as a nuclear option.

The problem, however, is that non-refoulement is a jus cogens norm, binding regardless of treaty status, per UNHCR’s 2007 opinion. Deporting individuals to persecution or torture (e.g., Zimbabwean paedophile to hostility) could trigger claims in international tribunals or under universal jurisdiction, as in Pinochet (1999). This is like peeling an onion. There is no single fix.

Annoyingly, disapplying ECHR and renouncing treaties shifts challenges to common law and domestic statutes which would immediately see a flurry of new cases as the blob attempts to establish fresh precedents. There's a reason some countries end up lining lawyers and judges up against the wall.

The consideration as to what we should do is not just a matter of what we should do. It’s as much about what an embattled party can do in the space of a single term with a marginal majority - against intractable opposition inside and outside of parliament.

This is where Reform UK falls over. There is no indication the party has given the matter any serious thought. They are still talking about pushbacks in the channel and talk as thought leaving the ECHR is a silver bullet. What they propose could very easily end up in a diplomatic quagmire and a constitutional crisis, reopening Brexit politics and dragging us back into tedious debates about Northern Ireland.

Kemi Badenoch, on the other hand, is taking a more reasoned line. I think she’s right to take this cautious approach, and she's bought herself a little time, but she needs to elaborate on why she's hesitant. She should say...

"ECHR exit is a nuclear option, but I'm not going to go nuclear unless I'm sure it will solve the problems. I am not going to waste government bandwidth and parliamentary time on an exercise if there's a risk we will end up exactly where we started. Reform would press the nuclear button without knowing or understanding what chain of events it would set off. This is careless and irresponsible.

Behind the scenes I have some of the best brains in the business working to ensure we get this right. I understand that there can be no half measures, but ill-considered actions without a plan could make things worse. I won't do that. Other countries seem to be able to function as ECHR members. We need to understand why that is before taking a wrecking ball to the post-war peace architecture.

With something like this, we have to give careful consideration to the Northern Ireland settlement, and how the EU and US might react (not least because Trump won't be in power forever). We don't want to get derailed by side issues when our central aim is to get a grip on immigration. Reform would open up cans of worms without the skill or knowledge to cope with the consequences.

We are looking at ways we can disapply aspects of the ECHR, or at least minimise its influence over certain areas of policy. We are duty bound to explore all of the options first. There might be a better, faster way to get what we want. The problem is as much to do with our legal culture as it is the law. All the same, if my team come up empty, and we are forced by reality to concede ECHR exit is the only option, that is what I will do - whatever it takes. If our nation cannot control its own borders, we cease to be a nation".

Kemi Badenoch must understand this is make or break for her party and her leadership. If she decides leaving the ECHR is not the answer, she will need to be able to spell out an alternative plan of action - which almost certainly demands we quit the Refugee Convention, and she must make it clear that dinghy migrants will not be housed in hotels or given housing, and that they will not be free to roam. They have committed an offence and we will not recognise them as refugees. Asylum claims will have a 95% rejection rate. Appeals will be swift and cursory with legal aid capped to a minimum.

The problem for Badenoch, however, is that her team could produce the most diligent and accurate action plan possible on ECHR but it could never compete with the simplistic hardline "leave the ECHR" mantra of Reform. Explaining the technicalities is beyond the attention span of most people. They do not understand the intricacies and they don't want to (why would they?). They just want the job done - and they do not trust Tories.

There is a danger here of history repeating, where Farage encouraged people to believe that EU freedom of movement was synonymous with open borders, just to get Brexit over the line, when the problem was always primarily non-EU migrants. Again we could see the slopulist right pushing non-solutions to complex problems.

On that front, Badenoch has a clear run at establishing the Tories as the more intellectually coherent party, but if her policy is not easily explained, and distilled into convincing messages, she's got an uphill battle on her hands. She will probably decide against leaving the ECHR, not least because her party won't allow it, but also because there is limited utility in it. She will have to spell out that the problem is British laws and British judges, not least the HRA.

If that's where they're going, they need to firm up the overall policy package. The Tories have set out some of their thinking in The Deportation Bill. It includes:

1. Automatic deportation for anyone who arrives in Britain illegally

2. Disapplying the Human Rights Act from all immigration matters

3. Doubling Indefinite Leave to Remain (ILR) requirement from 5 to 10 years

4. New powers to remove ILR from anyone who has 'become a burden' on Britain

5. A legally binding, MP-backed annual cap on migration 6. Tighter visa rules for partners

7. Visa sanctions for uncooperative countries

8. Powers to deport all foreign criminals

9. Removing GDPR protections from foreign criminals and illegal migrants

10. Mandatory scientific age testing for asylum seekers

This all good stuff, though you'd immediately ask why the Tories didn't do any of this with their eighty seat majority. Rebuilding trust seems impossible. It is also the case that this package does not go far enough.

Where Badenoch is weak, is that she's still trotting out mantras about integration, failing to understand that we're about twenty years late for such measures to have any useful effect. She now needs to acknowledge the demographics crisis, and take sectarianism head on. That requires hostile environment measures including a symbolic ban on the burka and a ban on non-stun slaughter. She might not be able to say the word remigration, but she needs to be looking at remigration policies. The Boriswave must be reversed.

If she commits to this, she will likely offset the more measured approach to the ECHR question while taking her party to the right of Reform. If she can spell out a comprehensive policy platform, she can out-manoeuvre Reform in the credibility stakes.

I think, though, that Jenrick is key to this. Badenoch is seldom seen in the same room as Jenrick, feeding a sense of rivalry, as though the leadership contest never ended. Badenoch needs to present a team of ruthlessly competent people pushing a detailed plan. A Badenoch-Jenrick ticket is as powerful as the Blair-Brown partnership was at the time.

Rebuilding trust is difficult, but not impossible. The Tories can at least compete in the competence stakes. To date, Reform has not produced a single policy paper or a single subject expert, and the party will not attract serious talent because we've seen what happens when anyone steals the limelight from Farage. As such, Reform is not a serious proposition for government. Voters will instinctively pick up on that, and may give the Tories a second look if they look like they might actually get the job done.

For many, leaving the ECHR is going to be the benchmark of trust, but Badenoch is better keeping it as a reserve. She instead has to look at deal sweeteners. She has to be explicit in the rest of her policy programme. Net Zero must be repealed and we need to see a phase out of renewable energy. We need to see evidence that the green blob has been purged from the party.

Were it that Reform were a serious party with policies to speak of, and convincing spokesmen, the Tories would already be dead and buried. Reform's pathological amateurism is the lifeline for the Tory party. I think Badenoch already senses this. If she is savvy, she can capitalise on it, but her policy commission's report will have to be Rolls Royce standard. No stone left unturned. She has until September to decide if her party lives or dies.