ECHR: no half measures
For those who enjoy the Youtube/podcast format, above is a recent recording of Thinking Class with John Gillam in which we talk about immigration, sectarianism and other related themes.
Meanwhile, I’m still plugging away on writing the case for leaving the ECHR. I’ve already worked out that it’s more complex than it would seem, and as Sam Bidwell concludes in yesterday’s Telegraph, “even if an ECHR exit is necessary, as it might be, it will not be sufficient. If we are serious about getting to grips with the twin problems of judicial overreach and uncontrolled immigration, we need a holistic review of our constitutional architecture”.
Bidwell notes that “If we really want to stop judges from interfering in the Home Office’s efforts to deport foreign criminals, we need to do more than stick two fingers up to Strasbourg. Left to their own devices, ideologically motivated judges will find other ways to block the deportation of foreign criminals and the effective enforcement of our border security”.
As such, it is necessary to explore all the avenues as to what regime follows any ECHR exit. This is something Dominic Raab attempted to do with his ill-fated Bill of Rights which would have repealed the Human rights Act. There was a quiet realisation that it was opening a can of worms, possibly splitting the Tory party, and some suggest Northern Ireland would again cause headaches.
With some justification, many point to Tony Blair’s Human Rights Act as the main offender in all this. The Human Rights Act 1998 incorporated into UK law the rights contained in the ECHR. This was to make the Convention rights enforceable directly in this country. The Act makes a remedy for breach of a Convention right available in UK courts, without the need to go to the court in Strasbourg.
Many rights established under the Human Rights Act 1998 were already protected under UK law, but the purpose of the Act was largely to establish the ECHR in British law. The Human Rights Act places a duty on all courts and tribunals in the UK to interpret legislation so far as possible in a way compatible with the rights laid down in the European Convention on Human Rights (section 3(1)).
If that is not possible, the court may issue a "declaration of incompatibility". The declaration does not invalidate the legislation but permits the amendment of the legislation by a special fast-track procedure under section 10 of the Act.
Here’s it’s worth examining why the HRA exists. The original white paper “Rights Brought Home” states that “When the United Kingdom ratified the ECHR the view was taken that the rights and freedoms which the Convention guarantees were already, in substance, fully protected in British law. It was not considered necessary to write the Convention itself into British law, or to introduce any new laws in the United Kingdom in order to be sure of being able to comply with the Convention.
Part of the rationale for the HRA was to speed up cases and reduce the costs to make the ECHR accessible to all. It was argued as a practical and pragmatic measure. There was, however, a more insidious reason.
The view was that it would also mean that rights would be brought much more fully into the jurisprudence of the courts throughout the United Kingdom, and their interpretation would thus be “far more subtly and powerfully woven into our law” and that “British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe”. It would also ensure the Convention rights are taken more fully into account in the development of new policies and of legislation.
Though the European Court of Human Rights is a distinct entity from the European Union, it is a flanking instrument towards the further harmonisation of European social law.
The HRA has since seen a conveyor belt of cases, and spawned an entire industry of human rights litigation. It could then be argued that denouncing the ECHR is less important than repealing the HRA. For there to be a meaningful departure from the existing model, though, I think rolling back both is necessary.
A further consideration, however, is the current culture of law and government, not least the contempt for democracy. Climate change is a key theme in this. The whole point of creating legally-binding emissions targets in law, such as the 2008 Climate Change Act, was to enable extremely wealthy interests to control policy using judicial review. In other words, take power away from democratic governments.
This not forgetting that the Climate Change Act is implementing legislation to meet the obligations of international climate treaties. As such, if we are serious about rebooting the entire legal order, then we should consider dumping the Paris Agreement and any other offending treaties while we’re at it. The point I would venture, is that there can be no half measures on this. Half way is none of the way.
As to whether there would ever be the political will to do all this is then another question entirely. Perhaps when Ed Miliband’s Net Zero plans hit the wall and the lights go out, we might see more vocal demands to get serious.
On the immigration front, however, our politicians will be the last to catch on. There is a darkly hilarious irony, though, that as we debate leaving the ECHR, even EU Commission president, Ursula Von der Leyen, is to ask EU leaders to explore using ‘return hubs’ for migrants, not dissimilar to our own Rwanda scheme (thwarted in British courts). Soon enough, it might dawn on our own miscreant political class that something really must be done this time.
Some thoughts that may be of assistance in your exploration of the ECHR.
With regard to halting illegal migration, it seems to me that the 1951 Refugee Convention (RC) is a more fundamental piece of legislation that the ECHR. And that's because if someone turns up irregularly on a small boat and then claims asylum, they can do that because the UK is a signatory to the RC.
It seems to me that, in order to stop illegal migration, the UK needs to be able to say to any person arriving irregularly that they are simply not entitled to claim asylum. And to do that, the UK either has to withdraw from the RC or remains a signatory and attempts some sort of legal work around. The Tories of course went for the latter option in the Illegal Migration Act by seeking to interpret the word "directly" in Article 31(1) in a manner that precluded irregular migrants from being able to claim asylum. But this interpretation was rejected by the UN
https://www.unhcr.org/uk/publications/unhcr-recommendations-implementation-illegal-migration-act-2023
and by human rights lawyers and academics. Which I'm guessing would have left the Act open to a strong legal challenge. So in other words another classic half measure by the Tories. Thus, it strikes me that to properly tackle illegal migration it's necessary to withdraw from both the RC.
Given the key role played by the RC with regard to illegal migration, I'm unclear why Jenrick is so focused on the ECHR. Perhaps because, rightly he sees it as a fundamental obstacle to deporting those already here. This thread by Ragiv Shah (https://x.com/RajivShah90/status/1841074546989768958) sets out how the ECHR is a greater obstacle to deportation than the RC.
Shah argues in this thread (https://x.com/RajivShah90/status/1841474925258785021) that
"Seeking to leave the ECHR and replace it with a British Bill of Rights is a big mistake. Human rights law is problematic because it gives judges the power to decide what should be questions of political morality. A British Bill of Rights would lead to the same problems...
Issue with HR law is that by asking judges to interpret vaguely worded provisions expressed in moral terms, it is necessarily inviting judges to decide what their understanding of those concepts are and it's hard to do that w/o letting one's own views in...
As Professor @JTasioulas said we need to rescue human rights from human rights law, and we do not do that by setting up a new Bill of Rights. As @michaelpforan said, that does not mean that no new legislation might be required (on the contrary)"
And Shah links to this thread by Foran (https://x.com/michaelpforan/status/1840715002455396467) who suggests that we should move away from vaguely worded legislation inviting judicial interpretation to more detailed legislation that clearly sets out the will of Parliament.
"We don’t need a Bill of Rights, we need a Privacy Act, a Freedom of Expression Act, a Family Life Act, a Freedom on Belief Act and so on. Somewhere where Parliament does the work of legislating on these issues concretely, rather than passing the responsibility to courts."
And Foran links to this interesting thread by Philip Murray (https://x.com/philipmurraylaw/status/1840674737090896144) who states
"I'm on the more sceptical side when it comes to the ECHR. This isn't because I don't think the rights it enshrines are important, or because I'm against pan-European rights protection, but because I think its method for protecting rights sits uneasily with common law tradition."
Murray depressingly notes that
"ECHR withdrawal is also appealing to those who wish to increase control of national borders. The shadow of the Rwanda litigation looms large here. But R (AAA) v Home Secretary (the Supreme Court's Rwanda judgment) was only partially based on the ECHR.
If the UK hadn't been a signatory to the ECHR, the Rwanda scheme would still have been declared unlawful by the court. That's because of the UK's obligations under the Refugee Convention and, potentially, customary international law, all incorporated into domestic law.
Again, it's intellectually dishonest to present ECHR withdrawal as the silver bullet of border control without acknowledging the complex intermeshing of multiple international law obligations. There's a lot of Convention scapegoating going on here."
With regards to judicial overreach - judges interpret/apply law made by our elected parliament. It is not made up on the spot, and the Home Office is not above the law even though it probably thinks it should be. Judges decisions are open to challenge up until the Supreme Court. The premise for leaving the ECHR is to curb illegal immigration. The purpose of the ECHR is to protect citizens from political overreach. Illegal immigration is very small in comparison to legal controllable migration therefore change the rules to suit and deal with the illegal issue through better management and agreements. Illegal immigration wasn't an issue before brexit and oddly brexit wasn't an issue before that pot got stirred. Politicians past & present are far more a threat to our liberties than illegal migration has ever been. We must ensure that we are protected from them, and it is of course politicians stirring the pot with regards to abolishing the ECHR for their own career and media advancement. Finally, no one can say that leaving the ECHR will solve the problem, and no one can provide actual fact-based data showing the ECHR is guilty as charged. It is all hysterical simplistic stuff.