ECHR: a dose of realism

I do not speak with expertise on the matter of Northern Ireland, but again, I suspect the right is deceiving itself. In a recent CPS think tank report on leaving the ECHR, Peter Lilley claims that "Fortunately, although the GFA does involve the European Convention on Human Rights in several of its provisions, it does not explicitly require the United Kingdom as a whole to adhere to the Convention itself. Instead, the GFA includes commitments to specific aspects related to the ECHR in the context of Northern Ireland".

Lilley concludes "Thus, the GFA necessitates the incorporation of the ECHR rights explicitly into Northern Ireland law and requires adherence to those human rights standards. But it does not require the UK to remain a member of the ECHR or to enshrine ECHR rights in law covering Great Britain."

His report doesn't go much deeper than this. It fits with the propensity on the right to gloss over that which is inconvenient. This seems like sophistry to me. The actual text of the GFA below says "There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions".

To me, that implies full membership of the ECHR. That would be the first point of dispute, potentially subject to judicial review. It is also possible Ireland would view exit as a breach of international law and may seek remedy in an international court. I'm also assuming parliament would be bound by the Miller case, and departure would be subject to parliamentary consent.

That Lilley doesn't even entertain this as a possibility tells its own story. The case is made on the basis of lazy assumption. But assuming he is correct (stranger things have happened) We're essentially taking about echoing Brexit, where Northern Ireland, in effect, remains under ECHR law, but not ECHR jurisdiction. As such, any cases brought under ECHR law would have to be subject to an independent tribunal with independent selection of judges. That then creates the possibility of divergence between NI and GB.

In that case, you would need primary legislation to close off all the means by which Northern Ireland could be used as a back door. You would also need special provisions to ensure that migrants claiming asylum in Northern Ireland, travelling from the RoI would not be able to utilise ECHR provisions. This will be the target of intense lawfare, since open borders activists only have to establish one precedent and the Northern Ireland becomes the gateway. The regime in Ireland would probably object and file a case of its own.

If the UK loses even one case, the whole enterprise is likely undone, and I can even imagine a scenario where a British Bill or Rights as to dynamically align with ECHR (or ECHR jurisprudence) - much like the Windsor Framework. It could end up being a giant mess given the British proopsenty to take the path of least resistance to maintain the Northern Ireland settlement.

It's possible that my fears are overblown, but again I ask... what if I'm right? Shouldn't we have some honest inquiry into this? I simply do not accept "Nah, it'll be fine" from the likes of Peter Lilley, nor am I going to accept creative legal interpretations from the likes of Ben Habib. It's funny how the legal conclusions they reach always absolve them of any need for concern. We saw this during Brexit and we saw this in their reading of international maritime law over the dinghy problem. I find the pair of them ridiculous. Restore Britain would do well to commission properly independent legal advice before they wade into it. The right prefers simple and elegant solutions where none exist.

There's a lot of potential here to to create mayhem. I'm not taken by the hyperbole that it would collapse the peace process, but it could open up some long running disputes that complicate our own domestic reforms. The UK will probably be forced into inelegant compromises and quarrelsome multilateral negotiations.

The second problem is the implications for the TCA in that the EU can terminate judicial cooperation in criminal matters. Lilley states that "Each party also retains the right to terminate this co-operation if the other side, for example, withdraws ordinary rights to fair trial under the law from its citizens who may be extradited, or abuses access to shared confidential information. Leaving the ECHR would not involve either of those things".

It's amazing how little Lilley has learned from the past ten years. The way the EU sees it, if any ECHR clause is voided then all of it is. Moreover, if the EU thinks it has leverage it will use it. It will use the threat of Chapter Three suspension to get its own way in upholding the GFA. But again, Lilley thinks "Nah, it'll be fine".

The point for me is that if we do this thing, with a view to ending immigration problems (caused by our own courts and our own judges), then the whole of that parliament's bandwidth is going to be chewed up by protracted three way negotiations, only to produce a dog's dinner of a compromise that still keeps us bound to the basic tenets of the ECHR, which only invites more lawfare.

This is something Kemi Badenoch needs to consider carefully. Essentially, a party or pressure group needs to quarantine the ERG fantasists and do their own homework, otherwise they're likely to adopt the woefully naive self-deceptions of the hard right. This is why Ben Habib isn't to be taken seriously about anything in respect of Northern Ireland. He listens to the advice that flatters his presumptions. I'm sure there are solutions, but to arrive at them, you need an honest appraisal of reality, which is beyond their abilities.

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Meanwhile, Reform is nowhere close to knowing what they would do with power. The chances of them competently weilding power are somewhere close to zero, and on that basis, I do not want them anywhere near power. An incompetent populist government stands to do enormous damage, to no useful effect, ensuring that the right is kept away from power for a generation - thereby strengthening the grip of the establishment.

I think there are solutions to the problems we face, but it's going to require a series of sustained, considered reforms, from the mundane and uncontroversial, to the seismic. It's going to have to be done in a particular way, in a particular order. Anyone talking about simplistic silver bullets like a "great restoration act" or leaving the ECHR, just isn't doing any serious thinking.

I know this because I've done the hard yards. A little over a year ago, Ukip asked me to write a manifesto for them. I was glad to do it because I wanted to demonstrate what could be achieved in a relatively short time, and what came out of that process was a reasonably good synopsis of what the right generally believes in. But that wasn't enough. It wasn't good enough - and I think I said so at the time.

I remember being quite taken with the idea of a Great Restoration Bill and leaving the ECHR, but these actions in themselves require a great deal of research and planning. I didn't believe myself to be suitably qualified to do this work. It isn't a job for amateurs.

Since then, though, I've been immersed in the subject, looking at what needs to be done, the order of execution, and the real world implications of attempting it. There, I have gradually become less convinced that either is the way forward. Leaving the ECHR is a highly complex, politically charged undertaking, and with my reading of it, I am not convinced it usefully addresses the issues Britain is grappling with.

As to a great repeal/restoration bill, I think any such attempt would rapidly flounder and cause endless legal chaos. Parliament doesn't have the means or the ability to scrutinise it. Moreover, the situation we're in now is something we evolved into over three decades, and it's going to require a similar process of evolution out of it. Before even attempting it, you need a programme of reform for the civil service, and to de-fang the blob. That comes in the form of restrictions on crowdfunding, NGO funding and laws on foreign interference.

The preparatory work for souch major constitutional reengineering is enough to keep any government busy for a whole term of parliament, especially when you consider the reforms we need to existing immigration rules.

Since this is a process of transition, you cannot begin to transition until you know what it is you're transitioning to, and what the end state looks like. To date, I have not seen anyone on the right set out a coherent vision, or a plan that addresses real and serious concerns. All we get are restorationist fantasies.

I have seen the maximalist fantasies regarding the reclamation of national sovereignty, not taking into account the Northern Ireland settlement, or trade relations with the EU. There's no point pressing them for details because, as with Brexit, there is a prevalent denialism when it comes to mitigating the problems and addressing the dilemmas. This is why Brexit ended up being a pig's ear.

Up to press, there are no bodies on the right doing any serious thinking on this. Habib's GBPAC is paddling in the shallow end, and though I don't doubt Lowe's sincerity, his outfit doesn't have the goods either, and isn't likely to. Of all the usual dissident right crowd, I have only seen credible thinking from Douglas Carswell, who has set out viable measures we can take now, without the headache of major constitutional reform. On the matter of the ECHR, Kemi Badenoch is making the running, and I have some faith her people will reach the same conclusion I did. Leaving the ECHR, for the foreseeable future, is a non-starter.

For me, the problem starts much closer to home, and if we want to see tangible results in a timely fashion, we need to be thinking more about HRA reforms and a close look at the judiciary. We need more and better enforcement of existing laws that would deal with the pull factors. What's been missing all this time is the political will.

While the Tories deserved the kicking they got in 2024, I think they had realised the mess they'd made of things, but the problem was mainly Rishi Sunak. His government was making progress in terms of establishing the principle of offshore processing, but would stop short of measures to make it lawfare proof to placate the wets in his party. The same measures, backed by political willpower, might actually work.

Things like a Great Restoration Bill and leaving the ECHR sound appealing because they're ambitious, transformative and, on the face of it, simple. But the devil is in the detail, and in the execution. It's the sort of thing which, if bungled, could create a constitutional crisis, and judicial paralysis, where the temporary fixes become permanent and we're in an even bigger mess than before. Collectively, the right doesn't have the brains to pull this off - especially given the weight of opposition.

Essentially, what I am asking is for the right to apply the same level of scrutiny to their ideas as I have mine. There's some interesting ideas that went into the manifesto I wrote, but in the end, creative radicalism is just fantasising if you can't credibly map out the implementation. Many on the right want to abandon international law, and would happily blow up all trade relations with the EU, even if it means blowing up the Northern Ireland peace process, and not giving things like the bond market a second thought. They'd be trussed within a fortnight.

As such, we need more grown-up thinking, recognising that any right wing government is going to be in with a fragile mandate and a narrow majority, and must be wise in how it spends political capital - and how it uses government bandwidth. Our modus operandi must be evolution not revolution. Radical thinking has its uses in imagining the end state, but when it comes to the real world, more precision and care is required. When it comes to the simplistic solutions offered by the hard right, the more confident the opinion, the less weight I give to it.