ECHR: Problems on top of problems

As I suspected, the Braverman ECHR report is going to keep me occupied all week. The paper argues that leaving the ECHR does not breach the GFA. I think it almost certainly does, but that's neither here nor there. The paper proposes a six month negotiation process to formulate an amended GFA. That much categorically isn't going to happen. I think the authors know this. In this event they skip to a programme of unilateral amendments to the Windsor Framework and the Northern Ireland Protocol.

This is where the authors understand the issue better than Peter Lilley's report. You cannot leave the ECHR and expect it to accomplish anything without also junking the Protocol and the Windsor Framework. That though, almost certainly blows up the GFA and puts us in breach of our agreements with the EU, and I wouldn't be surprised if it led to the wholesale suspension of the TCA.

We'd need to do this because, if you look at page 30 of Braverman's report (and this is pivotal - and very important to understand), they make reference to the test case JR295 in the matter of the Illegal Migration Act (2023) - where the Dillon ruling, establishing supremacy of EU law in Article 2 strikes out the Illegal Immigration Act. This is what forced Labour to repeal the act. I can't see a way around this. There are no safeguards like Article 16 we can use on a fundamental pillar of the Windsor Framework.

This is where the odious Steve Peers is quite correct in saying "The Government, and Westminster in general, have not woken up to the legal realities of the Brexit deal. Dillon makes clear that Parliament needs to pay far greater attention to the Windsor Framework; not as a legal curio that only occasionally escapes its provincial relevance, but as a powerful source of law which impacts law-making and laws which are intended to apply on a UK-wide basis". Essentially, we are in breach of the GFA if we have a law for GB that cannot also be applied to NI.

On the face of it, this is the slam dunker not only for leaving the ECHR but scrapping the entire Brexit settlement. Half-measures won't work. Since the authors recognise this, they should be explicit about this rather than glossing over it and tucking it discreetly in a paragraph on page 32.

The issue here, though, is if you are going to those lengths, then you also need to quit the following:

• The Refugee Convention

• The International Covenant on Civil and Political Rights of 1966

• The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984

• The Council of Europe Convention on Action against

• Trafficking in Human Beings done at Warsaw on 16 May 2005

• Any other international law, or convention or rule of international law, whatsoever, including any order, judgment, decision or measure of the European Court of Human Rights.

Essentially, we'd have to sever ties to international law as a whole. In for a penny, in for a pound.

Where it falls over, is in the implementation. The authors believe what follows is a short transition period. Their plan is that HM Government should establish a temporary Human Rights Case Law Review Commission within Government to examine and recommend which, if any, previous Strasbourg influenced case law should be retained or legislatively re-enacted under domestic law. The Commission would operate with a sunset clause of a certain duration and would work with parliamentary committees to provide draft bills or amendments to existing law.

Here I wonder if the authors have given ANY thought to the scale of this, and how long this process would take. I imagine it would take up enormous bandwidth and would require a series of contentious and complex bills that would keep parliament occupied for years. They point to a sunset clause "of a certain duration" but that would have to be in years, not months - otherwise, chopping the whole system off at the knee overnight is going to cause mayhem - on top of the existing mayhem caused by scrapping the entire Brexit settlement.

That then begs the question of how this plays out in the real world. I don't see parliament cooperating. You don't get to do any of this without a massive parliamentary majority - and will contested in the courts at every step of the way. Before embarking upon this, you would want to reform judicial review, and possibly make some constitutional changes first. But either way, this becomes a major political bunfight.

This all should be enough to make any sane politician think twice about embarking on such a venture. The trade politics alone are a major headache, where yet again, considerable bandwidth must be allocated to Northern Ireland. I personally wouldn't touch it with a barge pole and I can see why successive politicians who've toyed with the idea of human rights reform have quietly shelved their ambitions and lowered their expectations.

However, these are not normal times. "Social cohesion" as they insist on calling it, is disintegrating, and will not withstand the legal paralysis that prevents effective immigration policies. Upsetting the applecart in Northern Ireland could be the politically cheaper option than allowing immigration to spiral further out of control. We are steadily reaching the point where public disquiet over migrant hotels and the dinghies will force actions that will not wait for legal clarity and constitutional reforms. Law, diplomacy and politics is not responsive enough to keep pace with events. We could be looking at a broader breakdown of public order.

With that in mind, we at some point need an elected government, and parliament to assert its own authority and start doing things - worrying about the diplomatic and legal niceties later. I'm not sure that we want to swamp parliament with protracted technical arguments about rights and international law. ECHR exit could end up being a massive distraction, and even if we go the whole hog, I still don't think it puts an end to lawfare. The interim process creates opportunities for lawfare on a scale we have never seen before. As such, if Braverman wants us to go down this route, she will have to provide more than a few paragraphs of wishful thinking and understatement.

As mentioned previously, I would like to test all the other avenues to destruction first. As far as I'm aware, the Rwanda principle was never really tested. I think it might have worked. The Safety of Rwanda Act struck out international law from any consideration, and disapplied sections two and three of the Human Rights Act. A civil service union attempted to challenge it, but couldn't have meaningfully stopped it. At most a government would simply have to ignore an ECtHR injunction. As such, the Tories aren't entirely wrong in saying the Rwanda plan was ready to go.

It was still on sketchy territory in that Rwanda probably doesn't qualify as safe and it does fly in the face of convention - but I wouldn't lose any sleep over that. I might feel differently were we talking about European refugees and not third world illegal immigrants. Parliament passed the Safety of Rwanda Act and that should be all any government needs in order to proceed.

There was, however, the small problem capacity. Only 5,700 asylum seekers were identified in the initial cohort to be sent to Rwanda, and there is next to zero chance Rwanda would ever take that many. For context, there were 37,000 crossings last year according to Migration Watch.

Though the Rwanda plan was useful in establishing offshore resettlement as a principle, it doesn't even begin to dent the overall number of bogus refugees. The scheme would need to be replicated many times over, between several countries. Good luck with that. To accomplish that, we're going to need trade and development agreements backed by substantial foreign aid as a deal sweetener.

Moreover, supposing we left the ECHR and the respective non-refoulement conventions, and any other legal obstacles to deportation, we would still have much the same problems. Fixing the legal landscape provides no remedy for the practical considerations at this scale. For sure, we could establish a Falklands internment camp and an overspill facility somewhere on a remote Scottish island, but we're now talking about many tens of thousands - and indefinite detention, having to expand on an indefinite basis, is problematic and of limited utility.

Here we are working on the presumption that indefinite detention and resettlement will serve as a deterrent - thereby stopping, or substantially reducing, the number of crossings. But it might not work. We are applying the motivational reasoning abilities of educated people to low IQ third-worlders. They do not necessarily respond to disincentives and will attempt the crossing anyway. Since, in their eyes, they have nowhere else to be, many will try their luck regardless.

You might say, if they can be motivated to come here, rather than go to another country, then they are capable of responding to motivational signals. And if they can be motivated, they can be demotivated and it’s simply a question of pressing the right buttons. My feeling is that it will reduce flows from mid-IQ countries, but the numbers of intellectually subnormal Africans will keep rising. We shall see.

Here, then, we get into direct deportations, looking at carrot and stick policies to get third countries to take back their garbage, but I still think that's going to be a slow and limited process. We need to look at maximal hostile environment and voluntary remigration measures. Voluntary remigration immediately sidesteps any legal issues, so there's that. Ultimately, I think there is more to be gained from looking at remigration/hostile environment measures than fannying about trying to leave the ECHR.

In this, to their credit, Labour have been doing some of the things I've outlined in terms of cracking down on Deliveroo and inspecting HMOs etc, but not at the necessary scale to make a discernible impact. Again we come back to the lack of seriousness and lack of political will. I rather get the feeling that talk of leaving the ECHR is displacement activity, looking for a single silver bullet with magical properties rather than doing the sustained and detailed work commensurate with solving a complex and multifaceted problems.

As it happens, I do not think the ECHR is an insurmountable obstacle to deportations because any breach is not going to mobilise any foreign attempt to enforce international law, because most European countries are exploring similar options. Arguably the Windsor Framework does create an asylum backdoor, but I think Northern Ireland's residents will address that problem with more direct hostile environment approaches. The worst of the resistance will come from the blob in and around Westminster - which is problematic on every issue. We need a de-blobbing policy.

Where the ECHR/HRA could become a nuisance, is in areas where we have yet to take any serious action. When it comes to taking on Islamic sectarianism, we're going to have to take extraordinary measures, but something tells me that by the time we come to dealing with those issues, we will be far beyond questions of legal compliance. We're probably then in emergency safeguards territory where we can choose to suspend articles of Human Rights. We'll cross the bridge when we come to it. For now, I'm more interested in the less politically expensive approaches to dealing with garbage immigration.