Braverman's flight of fancy

I’ve now been writing on and off about ECHR exit for nearly a year. It’s been interesting to track my own progress on this. Until I started thinking about the mechanics of leaving, I was unequivocally pro-exit, but with the caveat that of itself it would not accomplish very much. Now, I’m just not sure.

I’m actually happy with that as a conclusion. It means I’ve approached it objectively. What was once an article of faith, is now a much more nuanced question for me. It would have been easy to set out a case for leaving, but that case almost writes itself. We’ve seen a steady drip of egregious rulings over the years, with the Strasbourg court often overstepping its remit, and with reform seeming like such a remote possibility, exit rather suggests itself. All that’s left to do, you might think, is strengthen the evidence base for leaving.

This is what I might have expected from the usual suspects like Peter Lilley and the ERG-adjacent right. They won’t have challenged their own assumption but they shouldn’t have much of a problem firming up the arguments. That, though, is not what we see from the latest Prosperity Institute report sponsored by Suella Braverman. The case for leaving is cursory. With ECHR being an article of faith for most of the right, they obviously don’t feel the need to go the extra mile.

Breaking with tradition, though, they do give some thought as to how we might do it. In contrast with the recent CPS report by Peter Lilley, Braverman acknowledges that Northern Ireland is something that requires more than a few paragraphs worth of attention. But this is where it all falls over.

The Braverman report tends to support Lilley’s assertion that the GFA does not explicitly require ECHR membership. That’s as maybe. I happen to think, though, that ECHR membership is heavily implied and continued membership was the underlying assumption at the time the agreement was signed. When it comes to these such disputes (and it most certainly will be the subject of a dispute) the original intent is as important as what it actually says.

Again, I’d point out that it doesn’t matter what Braverman, Lilley or anybody else thinks. If one of the GFA parties thinks ECHR withdrawal is a breach, and they most certainly will, then there is going to be a legal contest, and if I were a betting man, I’d put money on ECHR being a required component for the proper functioning of the GFA.

But whatever the verdict, it is not going to make for a straightforward amendment to the GFA as Mrs Braverman’s team assumes. More than likely, this will be intensely political.

The authors argue that this is no biggie since the GFA has been amended before. This is where I think they’re away with the fairies. It doesn’t seem to have landed with them that these were relatively marginal amendments rather than a fundamental re-engineering. The authors note that some of these changes took years to negotiate, but somehow believe removing the ECHR from the picture is equally straightforward. You have to salute the optimism.

Where it further falls apart is when they get stuck into how they would go about it. They say:

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. Thus, in charting a course for ECHR withdrawal, it is essential to adopt a framework rooted in constitutional principle, legal clarity, and national unity. The following general principles must guide any legislative and treaty reform process:

Legal uniformity: Northern Ireland is part of the United Kingdom, and it should not be subject to a parallel system of human rights enforcement via the ECtHR in Strasbourg whilst the rest of the UK is not.

Here it’s worth noting why the ECHR is features in the GFA. It is indented as a neutral and trusted joint arbitration mechanism with fundamental elements common to all parties to ensure a uniform and politically satisfactory approach to legal remedies.

If, then, the intent is a UK-wide reversion to the British system of common law, then it completely does away with any independent arbitration mechanism. So I have just one question. Do the authors seriously believe all parties involved will passively consent to a fundamental re-working of the GFA?

This further comes unstuck when they set out their “strategic approach”. They allude to a consultation process and then phase two is to pull the trigger on exit, where they casually drop in the following…

In the event that some of the political parties of Northern Ireland refuse to support the changes, HM Government would proceed with this phase in its sovereign legislative capacity, i.e. through amendments to the Northern Ireland Act 1998, just as the British Government proceeded with the Northern Ireland Protocol and the Windsor Framework.

We can safely the parties will not support proposed changes, especially if they do not on some level incorporate ECHR principles with independent arbitration. (Something that immediately creates the legal asymmetry the authors seek to avoid). In the event of such a dispute, the authors favour unilateral action.

This leaves us with two possibilities. Either the authors are hopelessly naive (if they seriously believe this won’t blow up the GFA), or that it’s that they know it will blow up the GFA and they simply do not care. I would respect them more if they explicitly stated the latter.

I think on that score, knowing what we know about the authors and the circles they move in, there is some naivety, but it’s mostly dishonesty. Being that these are ilk who advocated for unilateral Brexit (the so-called WTO option), it wouldn’t surprise me at all if the intended subtext of this report was to unilaterally exit the GFA and subsequently the entire Northern Ireland Brexit settlement. If it ultimately blows up the TCA, I don’t think they care about that either. Politically, then, this report is looking like a smokescreen for the hobby horse Ben Habib likes to ride. Again, if that is the intent, they should just say so.

There’s a lot more I could say about this report. There’s enough in it to keep me busy for a couple of weeks and I may come back to it. I have doubts about how we’d successfully transition away from the ECHR. The authors favour a reversion to the British system of common law, as opposed to the oft favoured Bill of Rights approach, but without going into enough detail.

Their plan is to “Prepare our domestic legal framework for the end of the ECHR, through a Bill to repeal the HRA 1998 and a temporary Case Law Review Commission under a sunset clause to examine what Strasbourg-influenced case law should be retained”. They do like their sunset clauses. This, to my mind, is where it gets messy, and temporary patches have a way of becoming permanent. The authors are mistaken if they believe this process puts and end to lawfare.

The central point here, though, is that the intent of ECHR exit is primarily to address Britain’s immigration woes, but any government embarking upon this process is going to end up using some considerable bandwidth and political capital (probably most of it) on more wranglings over Northern Ireland. Nobody wants to see that happen. Again we will see a political venture grinding to a halt over a complex and tedious political problem in Northern Ireland that few Brits actually care about and even fewer understand.

I see this playing out only one of two ways. If this endeavour of the dissident right is successfully concluded then Britain will reclaim undiluted sovereignty over Northern Ireland, restore the British legal system to its former glory, end lawfare, and put Britain’s immigration policy back on track. Alternatively, it will cause an almighty stink in Ireland, sucking in the EU (and potentially the USA if by then it’s Democrat controlled), leading to a mess of a compromise solution. This leads to entrenched legal asymmetry between NI and GB, and legal paralysis as a botched transition upends the entire judicial system - bringing down the government in the process.

On the basis of our experience with Brexit, I ask… which is more likely? If that’s the plan, I’d like to look at the alternative options.