ECHR exit: Pandora's box

It was only a year or so ago I was saying we needed a full reset, repealing the Human Rights Act, leaving the ECHR, and disavowing international treaties. It’s a shame I said that because I would really quite enjoy climbing on my high horse and calling the populists all kinds of entertaining names. But alas, I went along with the accepted wisdom and share some responsibility for the proliferation of these bad ideas.

In my defence, I have been consistent in saying that should we leave the ECHR we should take care to ensure that whatever replaces the ECHR isn’t as bad or worse, speculating that a British Bill of Rights, when enmeshed in the Northern Ireland settlement could leave us no better off. But it was only when Suella Braverman put pen to paper was I able to fully define my conclusions.

The thing is, until recently, I’d been guessing about what the right has in mind. I wouldn’t expect Farage or anyone within Reform to put any meat on the bones of what ECHR exit looks like, since they have form for going along with whatever opinion enjoys the most prestige on the right. As such, Braverman’s report last month, published by the Prosperity Institute, is likely to be the definitive version of how they see it playing out. It bears all the hallmarks of Brexiteer wishful thinking, so we can safely assume, so far as they’re concerned, it’s state of the art.

I’ve covered this at length in previous posts, so I don’t really want to rehash the arguments, but the short of it is leaving the ECHR looks far less attractive when you consider the work involved in making it happen. One thing Braverman touched on is that if the ECHR has to go then so does the Windsor Framework and the Northern Ireland Protocol. Straight off the bat, ECHR exit means relitigating Brexit.

I don’t think, though, that this occurs to anyone in Reform. For Reform, leaving the ECHR is an article of faith, and as far as they understand the issues it is a separate matter to Brexit - which is done and dusted so far as Farage ever thinks about it.

Now, if it were the case that Yusuf and Farage understood that ECHR exit potentially means collapsing the TCA, reopening Brexit politics, with a plan to deal with the fallout, this might not be so alarming. Well, it would given how little thought they put into it the last time around, but it’s especially alarming to think they would pull the trigger on ECHR exit only to be ambushed again by the technical politics of Northern Ireland. This is the sort of thing where you really need some sort of policy.

This is where it gets ultra tedious. There is no technical solution to the Northern Ireland problem that isn’t an inelegant mishmash of negotiated, asymmetric, self-defeating compromises - unless of course, we’re back to demands for a “WTO Brexit” where the EU is forced by its own legislation to erect a regulatory and customs border within Northern Ireland.

If we put the EU in that position, it has only one alternative to a land border and that’s a sea border between Ireland and the mainland EU. This creates a number of technical headaches for Ireland and the EU, and as such the EU will not be willing to do Britain any favours at all in terms of trade and diplomatic cooperation. If that is the plan then the mitigation strategy has to be big, bold and convincing. Otherwise, the bond market panics and prime minister Farage is out on his ear.

We should recall that last go around the Brexiteers were bolstered and emboldened by the prospect of a deep and comprehensive FTA with the USA, while talking up the potential of CPTPP - but that’s not going to fly this time around. The USA FTA never materialised, nor is it going to, the tide is turning against globalisation, and CPTPP is of minimal significance. The free trade illusion is shattered. This is also saying nothing of politics within Ireland itself. Recycled Brexit shtick won’t wash politically.

Add to this the prospect of withdrawing from all international treaties as Zia Yusuf proposes above, and we’re then looking at the UK effectively turning its back on the entire edifice of international law. I’m not one of those people who says it puts us on a par with Russia and Belarus, or that it makes Britain a pariah state, but doing it while simultaneously junking the GFA and the entire UK-EU settlement is going to have serious political and economic consequences, and you would hope any government would have given the matter some thought before embarking on such an adventure. But we know they haven’t given it any thought. And that’s a real problem.

Again we’re back to what Rupert Lowe said back in April. “I simply cannot endorse a party that has put so frighteningly little thought into what it would actually do with power”.

For my part, If I was dead set on doing this, I would be thinking in terms of completely rebooting British fishing and agriculture, scrapping all emissions trading and carbon regulations, and if necessary, borrowing whatever it costs to nuclearise the national grid. But that would require detailed plans born from a comprehensive understanding of all the industries involved, rather than the base libertarian assumptions of zoomer Toryboy wonks.

Essentially, unless a revolutionary government enters this process with eyes wide open, and a plan to deal with the economic and political fallout, it’s a recipe for chaos. But with the intention of falling back on common law, as per Braverman’s paper, we’re talking about a complete reinvention of the British constitution and much more besides, in a very short space of time. I simply do not see this being handled well.

My bet is that most voters are more in line with me on this. Regardless of what they might think about the ECHR, they do not want to spend the next parliamentary term in a state of chaos, while locked into intractable negotiations with the EU over Northern Ireland, and bickering about food safety regulations when the vast majority of us just want immigration sorted.

Here we must remind ourselves that there is nothing especially that stops us sorting out immigration. We don’t have to fanny about with leaving the ECHR and international treaties. Parliament is sovereign, the supreme court cannot overturn primary legislation, and nobody will seek ECHR enforcement when it comes to clearing out Afghan migrants when most other European states are faced with identical problems.

Depressingly, I don’t see any sense being injected into this debate. Reform is too deeply invested in leaving the ECHR as a silver bullet, while on the fringes, you have Ben Habib who would gladly collapse the GFA without any knowledge of, or regard for, wider consequences. Then you have Restore Britain, which has already degenerated into an engagement farming slop factory which will never have the courage to challenge the assumptions of its core supporters. One of which is that we must leave the ECHR. Populist slop is their bread and butter.

Some on the right are foresighted enough to acknowledge that a populist right wing government almost certainly will cause a major constitutional crisis and possibly and economic one, but this is the kind of accelerationist dogma that assumes once it all collapses, the right will the the ones in pole position to put it all back together. More likely we will see a radical swing to the left, putting our enemies in charge.

Meanwhile, as if this weren’t bad enough, most of the right is infatuated with David Starkey and the restorationist agenda. There’s a lot that can and should be repealed or reformed, but these are people who have fetishised the pre-1997 constitution, failing to recognise that our current predicament is something we evolved into over thirty years and cannot be reset to original settings. We need a design to take us forward, not take us back.

Hopefully, I will be addressing much of this on the forthcoming policy website soon. My web developer is very close to a working prototype but he’s buggered off to Boomtown festival for the weekend and I assume he will not have recovered until mid next week. After that, I will be uploading the first principles and foundation policies. I might as well enjoy a week off, because I have a feeling I’m going to be a very busy man for the foreseeable future.