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.
Why bother leaving the ECHR if that means all that trouble? Just ignore it. What are they going to do? Invade? You don’t need to take any notice of it. If the British legal system won’t countenance the ignoring, enact legislation to make it so. Make a law saying that no foreign legal decisions can override British law.
"Make a law saying that no foreign legal decisions can override British law."
...
This is already the case. But if we have British laws that require us to take notice of foreign legal decisions, then that *is* British law. So any such laws need to be changed.
What we cannot do is have a government that ignores its own laws.
Not this old chestnut again. We don't need a British bill of rights or other new legislation, we can go back to the system we had for hundreds of years before the ECHR. It is a lie to say we need new legislation, we need to repeal bad legislation
We seem to be re-running the endless argument over leaving the EU without a deal. In the event, covid caused far more disruption than a "no-deal" Brexit would have done. The EU is still wedded to Net Zero, it's banning political parties and politicians it doesn't like, it's committed to confronting Putin without the military force required...we are going to have to pull the plug on whatever relationship we have with it by the time we get rid of Starmer.
You've made a very convincing case about the consequences of withdrawing from the ECHR, and thanks for researching this and taking the time to write about it.
What do you think is more achievable: withdrawal from ECHR or getting the judiciary to apply English law as a default? As you've said before (and please correct me if I've misunderstood) withdrawal from ECHR is not a silver bullet and anyway, the unfavourable application of transnational law by our judiciary is as much a matter of (political) choice as it is of clear application of rules. Is the focus on withdrawal from ECHR rather a distraction? Or is it actually easier than any alternative route to regaining legal sovereignty?
"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"
Yes. It seems part of the point of globalisation is to force countries to toe the line. If we outsource all our energy and food production to other countries, then any attempt to start rattling cages can be 'punished' by sanctions to stop providing us that food and energy.
So any kind of wholesale change - if it is counter to the 'internationalists' - has to be carefully prepared, probably on a war-style footing to gain as close to 100% independent food production and energy generation as possible in the shortest possible time.
Whether it's a total nuclearisation of energy, or abandoning climate treaties and moving to get dozens or hundreds of new coal mines and oil rigs going, that would have to be done first. Only then, any UNexit-style 'ditch all treaties' plans.
Of course it would have to be funded as well! I'd just make it tax-free for oil and gas exploration companies to set up, as long as UK needs are met first - to try and ensure vast reductions in energy prices.
Otherwise we just get starved into submission.
And whether there is large-scale public sentiment to do a gigantic reset of everything in one leap? Probably not.
I believe I'm right in saying that thanks to absolute UK Parliamentary sovereignty you don't have to leave the ECHR, just pass a Bill saying "notwithstanding" ECHR (etc) the UK will not accept ayslum claims (or similar.) What matters is to be specific about what you're overriding.
Rather than leave ECHR, or repeal HRA, all we need is for each of the point pieces of legislation (say on immigration, asylum, etc), to have a clause to the effect of "notwithstanding >> section of HRA saying to interpret to be compatible with ECHR << the following applies."
It is that bit of the HRA which gives the Judiciary the power to reinterpret the legislation such that the ECHR defeats the aims of the specific Act. Then the use of the "notwithstanding" clause basically tells the court that "this Act" dominates the HRA.
That would then allow the immediate issues to be dealt with, and any actual repeal of HRA etc could be left for a later date.
There would probably have to be some careful analysis of which bits of case law may fall when the new Act is being applied, as in theory it could also have effects beyond its intended scope.
I'm with you Publius although I think Pete makes cogent points too.
It's time to recognise reality for what it is - the EU has been forced, politically that it's effectively a 2nd tier political and regulatory trade entity; it's had it's coming to Jesus ( in Scotland of all places) and is now sulking in its post 'Suez' mode - le project is a busted flush , the international rules based order is, of now, effectively over - it ain't going to improve under Vance, Trump's likely successor.
Add to this Ukraine and the EU will be supporting this failed state for decades to come - worse there is no money to rebuild Ukraine unless the US/IMF agree it on its terms.
The sky didn't fall in after Brexit - which for most of the UK with hindsight was an economic non event. Even if we have to break the GFA, The Windsor Framework and the TCA - the worst that can happen is that we end up on WTO terms - it'll be a bit choppy.
The worst that can and is happening is that Starmer & Co are effectively trying to sneak us back in full SM/CU alignment with "the reset" - FFS.
We're at that tipping point, we reassert the Sovereignty of our Parliament - above anything - we revoke the ECHR forthwith & let Strasbourg/Brussels fight yesterday's battles - it really is difficult to be half-pregnant & kids dont appear in 9 weeks.
"failing to recognise that our current predicament is something we evolved into over thirty years " I would say, Forty Two years as we began to give away our power over our own policy development, when we entered the EEC on Jan 1 1973.
Peter believes we should stay in the ECHR or it leaves a gap in our law.
So if we ignore the ECHR just what law do we follow?
The message is confusing.
Staying in the ECHR means the UK judiciary will continue to use it.
Brexit negotiations on Ireland were complicated by our own politicians and civil service advising the EU how to be awkward when the EU were being pragmatic.
Our own establishment betrayed us.
The EU don’t have the power they had in 2016/7.
So why fear them?
We need some clear objectives on different subjects.
Energy.
We have coal - build coal powered power stations. It takes a couple of years not decades. Carbon dioxide if anything is a benefit not a disaster.
Small medium nuclear reactors are in the design stage - but you need a prototype so it will take 10 years before they make a significant dent on power supply - whilst the cost per MgW hour is estimated at £85 (currently it’s £45).
Balance of payments.
We have oil. Open up the oil fields and relieve the pressure on the economy.
Judiciary.
The last significant changes to law were made in 2005 and 1971.
There is no barrier except Parliament to redressing changes needed to the law.
The ECHR can be removed and legislation based on pre EU English law re-emphasised.
We should stop thinking about what the world thinks of us - they really don’t care, neither should we.
World Affairs
The EU May shout but America has the power.
If the EU tried to punish the UK the USA would I’m sure be delighted to provide support.
What would the USA gain? Significant kudos with its electorate as well economic opportunities.
The world has changed and this is not the 1970s when the EEC were regarded as dynamic and the answer to the UKs problems.
The EU is failing, it is corrupt and everyone knows it. The people of the EU have woken up whilst the EU are at full stretch trying to stop French, Polish, Hungarian and Danish anti globalist politicians taking over.
Germany and Italy aren’t far behind.
The establishment want us to fear truly leaving the EU.
It is the establishment which is the true enemy. They are evil people.
Show weakness and they will totally destroy our country.
It is only your extreme maximalist assertion that leaving the ECHR would collapse the NI arrangements, the UK/EU trade agreement and ... well just everything.
Moreover, you mix points of principle (e.g., whether we should be in the ECHR at all) with technicalities (e.g., whether it would be too difficult politically).
"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. "
I see no "fetishisation" going on here, just a reasonable understanding of law. Your objection is just rhetorical polemics. We do not need a replacement for the ECHR and its local implementation in the UK's Human Rights Act. Or if we do, you have not demonstrated why.
Whether we can get rid of the local bit (the HRA) while remaining in the ECHR is an open question. Braverman thinks not.
"the burden of proof should be on those who say we should leave the ECHR"
...
You make a reasonable point but of course proof of the future is not available to us. So what do we do? We make use of reason, common sense and precedent and make a best guess. Which is what Braverman does.
Such conclusions have the strength of opinion, not fact. Inevitably. This is why they are disputed.
We saw something similar in the related area of our leaving the EU. There were many lurid predictions of the disaster that would follow. At the time, these predictions could not be disproved. And those who wanted us to stay in the EU demanded "proof" before making the break.
Why bother leaving the ECHR if that means all that trouble? Just ignore it. What are they going to do? Invade? You don’t need to take any notice of it. If the British legal system won’t countenance the ignoring, enact legislation to make it so. Make a law saying that no foreign legal decisions can override British law.
"Make a law saying that no foreign legal decisions can override British law."
...
This is already the case. But if we have British laws that require us to take notice of foreign legal decisions, then that *is* British law. So any such laws need to be changed.
What we cannot do is have a government that ignores its own laws.
Not this old chestnut again. We don't need a British bill of rights or other new legislation, we can go back to the system we had for hundreds of years before the ECHR. It is a lie to say we need new legislation, we need to repeal bad legislation
We seem to be re-running the endless argument over leaving the EU without a deal. In the event, covid caused far more disruption than a "no-deal" Brexit would have done. The EU is still wedded to Net Zero, it's banning political parties and politicians it doesn't like, it's committed to confronting Putin without the military force required...we are going to have to pull the plug on whatever relationship we have with it by the time we get rid of Starmer.
You've made a very convincing case about the consequences of withdrawing from the ECHR, and thanks for researching this and taking the time to write about it.
What do you think is more achievable: withdrawal from ECHR or getting the judiciary to apply English law as a default? As you've said before (and please correct me if I've misunderstood) withdrawal from ECHR is not a silver bullet and anyway, the unfavourable application of transnational law by our judiciary is as much a matter of (political) choice as it is of clear application of rules. Is the focus on withdrawal from ECHR rather a distraction? Or is it actually easier than any alternative route to regaining legal sovereignty?
"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"
Yes. It seems part of the point of globalisation is to force countries to toe the line. If we outsource all our energy and food production to other countries, then any attempt to start rattling cages can be 'punished' by sanctions to stop providing us that food and energy.
So any kind of wholesale change - if it is counter to the 'internationalists' - has to be carefully prepared, probably on a war-style footing to gain as close to 100% independent food production and energy generation as possible in the shortest possible time.
Whether it's a total nuclearisation of energy, or abandoning climate treaties and moving to get dozens or hundreds of new coal mines and oil rigs going, that would have to be done first. Only then, any UNexit-style 'ditch all treaties' plans.
Of course it would have to be funded as well! I'd just make it tax-free for oil and gas exploration companies to set up, as long as UK needs are met first - to try and ensure vast reductions in energy prices.
Otherwise we just get starved into submission.
And whether there is large-scale public sentiment to do a gigantic reset of everything in one leap? Probably not.
I believe I'm right in saying that thanks to absolute UK Parliamentary sovereignty you don't have to leave the ECHR, just pass a Bill saying "notwithstanding" ECHR (etc) the UK will not accept ayslum claims (or similar.) What matters is to be specific about what you're overriding.
Exactly.
Rather than leave ECHR, or repeal HRA, all we need is for each of the point pieces of legislation (say on immigration, asylum, etc), to have a clause to the effect of "notwithstanding >> section of HRA saying to interpret to be compatible with ECHR << the following applies."
It is that bit of the HRA which gives the Judiciary the power to reinterpret the legislation such that the ECHR defeats the aims of the specific Act. Then the use of the "notwithstanding" clause basically tells the court that "this Act" dominates the HRA.
That would then allow the immediate issues to be dealt with, and any actual repeal of HRA etc could be left for a later date.
There would probably have to be some careful analysis of which bits of case law may fall when the new Act is being applied, as in theory it could also have effects beyond its intended scope.
I'm with you Publius although I think Pete makes cogent points too.
It's time to recognise reality for what it is - the EU has been forced, politically that it's effectively a 2nd tier political and regulatory trade entity; it's had it's coming to Jesus ( in Scotland of all places) and is now sulking in its post 'Suez' mode - le project is a busted flush , the international rules based order is, of now, effectively over - it ain't going to improve under Vance, Trump's likely successor.
Add to this Ukraine and the EU will be supporting this failed state for decades to come - worse there is no money to rebuild Ukraine unless the US/IMF agree it on its terms.
The sky didn't fall in after Brexit - which for most of the UK with hindsight was an economic non event. Even if we have to break the GFA, The Windsor Framework and the TCA - the worst that can happen is that we end up on WTO terms - it'll be a bit choppy.
The worst that can and is happening is that Starmer & Co are effectively trying to sneak us back in full SM/CU alignment with "the reset" - FFS.
We're at that tipping point, we reassert the Sovereignty of our Parliament - above anything - we revoke the ECHR forthwith & let Strasbourg/Brussels fight yesterday's battles - it really is difficult to be half-pregnant & kids dont appear in 9 weeks.
Great article, as always.
"failing to recognise that our current predicament is something we evolved into over thirty years " I would say, Forty Two years as we began to give away our power over our own policy development, when we entered the EEC on Jan 1 1973.
That's 52 years...
Peter believes we should stay in the ECHR or it leaves a gap in our law.
So if we ignore the ECHR just what law do we follow?
The message is confusing.
Staying in the ECHR means the UK judiciary will continue to use it.
Brexit negotiations on Ireland were complicated by our own politicians and civil service advising the EU how to be awkward when the EU were being pragmatic.
Our own establishment betrayed us.
The EU don’t have the power they had in 2016/7.
So why fear them?
We need some clear objectives on different subjects.
Energy.
We have coal - build coal powered power stations. It takes a couple of years not decades. Carbon dioxide if anything is a benefit not a disaster.
Small medium nuclear reactors are in the design stage - but you need a prototype so it will take 10 years before they make a significant dent on power supply - whilst the cost per MgW hour is estimated at £85 (currently it’s £45).
Balance of payments.
We have oil. Open up the oil fields and relieve the pressure on the economy.
Judiciary.
The last significant changes to law were made in 2005 and 1971.
There is no barrier except Parliament to redressing changes needed to the law.
The ECHR can be removed and legislation based on pre EU English law re-emphasised.
We should stop thinking about what the world thinks of us - they really don’t care, neither should we.
World Affairs
The EU May shout but America has the power.
If the EU tried to punish the UK the USA would I’m sure be delighted to provide support.
What would the USA gain? Significant kudos with its electorate as well economic opportunities.
The world has changed and this is not the 1970s when the EEC were regarded as dynamic and the answer to the UKs problems.
The EU is failing, it is corrupt and everyone knows it. The people of the EU have woken up whilst the EU are at full stretch trying to stop French, Polish, Hungarian and Danish anti globalist politicians taking over.
Germany and Italy aren’t far behind.
The establishment want us to fear truly leaving the EU.
It is the establishment which is the true enemy. They are evil people.
Show weakness and they will totally destroy our country.
Let’s face it they’ve nearly done that already.
It is only your extreme maximalist assertion that leaving the ECHR would collapse the NI arrangements, the UK/EU trade agreement and ... well just everything.
Moreover, you mix points of principle (e.g., whether we should be in the ECHR at all) with technicalities (e.g., whether it would be too difficult politically).
"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. "
I see no "fetishisation" going on here, just a reasonable understanding of law. Your objection is just rhetorical polemics. We do not need a replacement for the ECHR and its local implementation in the UK's Human Rights Act. Or if we do, you have not demonstrated why.
Whether we can get rid of the local bit (the HRA) while remaining in the ECHR is an open question. Braverman thinks not.
ISTM the burden of proof should be on those who say we should leave the ECHR. Especially if they are known for thoughtlessness.
"the burden of proof should be on those who say we should leave the ECHR"
...
You make a reasonable point but of course proof of the future is not available to us. So what do we do? We make use of reason, common sense and precedent and make a best guess. Which is what Braverman does.
Such conclusions have the strength of opinion, not fact. Inevitably. This is why they are disputed.
We saw something similar in the related area of our leaving the EU. There were many lurid predictions of the disaster that would follow. At the time, these predictions could not be disproved. And those who wanted us to stay in the EU demanded "proof" before making the break.
I started thinking about some of this with https://open.substack.com/pub/scouch1/p/a-new-framework-for-british-citizenship but I admit I hadn't considered how Northern Ireland fitted into it. Perhaps NI stays in scope of ECHR until they decide otherwise. No simple answers.