ECHR: A fork in the the road

Suella Braverman’s report on leaving the ECHR is useful and important - but only in the sense that it gives us the clearest idea yet what the dissident right clan is thinking. If you read the report, it’s not just a plan to leave the ECHR. It's a plan to blow up the entire Brexit settlement with the end destination being some vague notion of reversion to common law.

We can assume, given where it comes from, it’s aligned with the restorationist movement on the right. This spans the Tory right, much of Reform, and Lowe and Habib’s respective enterprises.

I’m not by any means sure this is a road we want to go down. I don’t see any scenario where this is successfully managed. I think it’s a recipe for major legal uncertainty, trade disruption, political chaos, and worst of all, a resurrection of Brexit politics.

Braverman’s report basically says it will put the Northern Ireland parties on notice to agree with whatever we dictate, otherwise we will unilaterally amend the relevant instruments including the Windsor Framework and NI protocol - asserting, correctly, that to leave any trace of the ECHR in the works would break the GFA the moment the UK reverted to common law.

It's all a convoluted way of saying they intend to blow up the entire Northern Ireland settlement, even if it means collapsing the TCA. At this point, we're no longer talking about suspending Part 3 of the TCA. We're probably talking a complete factory reset - which basically puts the relationship on to WTO terms. I do not see the EU turning a blind eye to Britain blowing up the GFA.

That means there is an immediate omnishambles and we're back to bickering over where to put the border, how it functions, and and protracted debates about SPS rules. That means years of renegotiation and a massive diversion of parliamentary bandwidth.

Essentially, the people behind this wheeze are the ERG types coming back for a second bite of the Brexit cherry. You might be fine with that, but since that is the report author's intention, they should at least just say so instead of pretending it's just a legislative tidying up exercise.

For my part, I have no interest in spending four years debating Northern Irish politics or customs rules again, and if that's what ECHR exit means then I'm ultimately against it. There never was an elegant solution to the Brexit mess in Northern Ireland, and regardless of where the border is, we still need to maintain a veterinary border in the Irish sea. It's never not going to be a convoluted mess. The only way to ever sidestep it was to remain in the EEA which the Brexiteers were dead set against.

Meanwhile, when I look at how 10,000 ECHR rulings have never been implemented, and how most of the egregious ruling come from British courts and British judges, I'd rather spend the time looking at what's going wrong in and around Westminster than reigniting the most tedious politics of all time over a remote province of the UK most Brits have never even been to. Leaving the ECHR seemed like a good idea, but the how defeats the why.

I did not expect to reach this conclusion, but we need to be clear-eyed about this. The people who were pushing for a no-deal Brexit originally are those with the least understanding of how treaty law works, and the most assertive opinions on treaty law. They simply are not up to the job.

If by some means I could be persuaded this was a good idea, these are the last people in the galaxy I would entrust to deliver it. They carry a large share of the blame for Brexit ending up the way it did - not least the oaf Lord Frost - whom Braverman thanks for his input on her report. The man who gave away Northern Ireland in the first place.

Supposing this is something that could and should be done (and I can still argue it), you are still going to need subsequent policies. That’s something that an outfit like Restore Britain should be giving serious consideration to. If the job is to complete the Brexit process (according to Brexit scripture) then it needs a detail-oriented strategy for mitigating the fallout - pushing aggressive growth policies, not least deleting green taxes and carbon trading etc. It also needs to go hand in hand with a remigration strategy to deal with the millions who should not be here.

This is where I don’t hold much confidence - in that a mitigation plan is only any good if you recognise the extent of the consequences of your policies - which in this case will be considerable. Imagine, then, how this plays out when you’re dealing with serial fantasists who don’t believe their actions will have serious consequences.

This puts me almost back where I was circa 2016, where something I support in principle relies on some of the very worst, least capable people to deliver it. With the Brexit experience etched in my mind, having blogged the issue almost every day for six years, I’m not in a rush to experience it again, especially with the odds of success being so very low. It would be botched to such an extent that any government even attempting it would be out on their ear in no time, precipitating a wild swing to the left. Either that, or we end up with a negotiated compromise that somehow manages to make matters worse.

Here you can argue that since the world is going to hell in a handcart anyway, and that David Betz is probably correct in that we have missed all the off ramps to avoid a civil war, we might as well blow it all up just to see what happens. A nihilist might ask if it could possibly be any worse than leaving things in the hands of the moderates.

But I’m not a nihilist. I still believe it is incumbent on us to look for ways out without blowing up the world. I’m increasingly of the view that the ECHR is a red herring, and that our problems lie much close to home. I do not believe ECHR exit is the appropriate remedy.

The ECHR is a badly malfunctioning system for sure, but we can find ways to work around it and we should look for ways to repair it. We are not the only country bumping up against its inadequacies. Moreover, the worst of what is done to us is not at the behest of Strasbourg judges. The case against the ECHR is a lazy collage of half-understood rulings that only the most dogmatic governments would ever implement.

The problem to my mind is a particularly British disease that’s endemic to our ruling class which holds international law, however dysfunctional, as sacrosanct, and any international organisation as above reproach. This explains Starmer’s zeal of ridding Britain of the Chagos Islands. We are ruled by lawyers and incompetent bureaucrats. Statesmanship is a lost art.

I take the view that international law, particularly the ECHR is a diplomatic toolkit, and an instrument of influence. It is a framework upon which to base international relations, maintaining standards among like-minded allies and incentivising delinquent states. If navigated with skill, that is.

Presently, our politicians just like to be told what to do by a higher authority. We have sovereignty, but our politicians just refuse to wield it in our interests. As such, we must address the culture within Westminster rather than going off on a wild goose chase that ends up in a Northern Ireland cul-de-sac.

As I’ve previously remarked, ECHR exit has become an article of faith for the right. It is a golden chalice they covet - but have coveted it for so long, they’ve forgotten why they want it. As with Brexit, utopia is only ever one treaty withdrawal away. It didn’t work last time, and it’s not going to work this time. Meanwhile, I keep wondering what could be achieved if we had a government that was actually focussed on the issues at hand, instead of reorganising the deckchairs. That, though, looks to be a situation vacant for the foreseeable future.