Leaving the ECHR

Robert Jenrick is making ECHR exit central to his leadership campaign. It’s a bold move and one which will ruffle feathers in his own party. The “one nation” wing is not happy. This could be the issue that makes or breaks the Tory party.

Those same Tories, however, should recall that their party’s inability, and lack of political will, to stop the boats is a big part of the reason they are now in opposition, and the ECHR is one of the main reasons why the boats keep coming.

It remains to be seen whether Jenrick has the minerals to take on his own party and win, but if not, it’ll be the beginning of the end of the Tories. Jenrick believes this is an existential matter for his party, and he is not wrong.

I take the view that one way or another, on a long enough timeline, Britain will quit the ECHR. Offering an in/out referendum on EU membership was the winning ticket for David Cameron, and some enterprising politician, if not Jenrick, will eventually work out that ECHR exit is another golden ticket.

As such, Britain’s involvement in the European Convention of Human Rights (ECHR) is to become a major political battle comparable in scope and intensity to Brexit. In many respects it is a continuation of the same philosophical battle.  

There’s a problem though. That Britain should leave the ECHR has become an article of faith for the British right, and like Brexit it’s an issue that’s less understood than it should be – particularly by those arguing for our departure. Though I would vote to leave the ECHR without hesitation, when I ask myself how much I really know about the issue, the answer is… not much.

That is why I’m taking on a new project. I’m still working on the manifesto project on an ad hoc basis but someone really needs to set out a comprehensive case for leaving the ECHR with a view to informing any future debate. Writing such a thing is a good way of answering my own questions and I’m sure will be of benefit to others. Moreover, nobody else will bother.

For this, I’m going to start from first principles, asking: What is it? What is it supposed to do? What does it actually do? How does it interact with British law? Is it a uniquely British problem? What will leaving solve? What should replace it? And rather importantly, what’s to stop a replacement being worse?

The ECHR was drafted in the aftermath of the Second World War and the Holocaust in an attempt to protect the people from the State, make sure the atrocities committed would never be repeated, and safeguard fundamental rights. Superficially, there is no good reason to oppose such an instrument but it’s not what it was intended to do that should concern us. It’s what it actually does.

It is widely believed that the ECHR has deviated from its original function, expanding into the domain of social policy and other important areas, meaning that an ever larger number of contentious issues will be resolved by an international body standing outside the constitutional order of the UK.

In the words of Lord Sumption, “the ECHR has devalued the whole concept of human rights. It has transformed the convention from a noble body of truly fundamental principles, almost universally shared, into something at once intrusive and banal. It has become a template against which to assess most aspects of the ordinary domestic legal order on principles which are highly contentious and far from fundamental”.

Fundamentally, representative democracy means we elect politicians to make laws. Those laws are legitimate because the people who made them are elected. If we don’t like those laws, we elect other people. If then, a third party entity without such legitimacy can, in effect, or directly, overturn laws, then you have rule by judges. Democracy becomes technocratic tyranny.

As a contracting party to the ECHR, the UK is bound by precedents arising from judgements of the court in Strasbourg. This is especially detrimental to Britain because the British establishment, a product of constitutional monarchy, places the rule of law over and above all other concerns, whether or not the law is legitimate.

There is now a growing perception that the ECHR is illegitimate and actively undermines democracy while preferencing the rights of criminals and foreigners over law abiding citizens. It is felt that the ECHR interferes with, and subverts immigration policy, making it impossible for Britain to control its borders.

Though immigration is certainly a primary concern in British politics, and is the most cited reason for leaving the ECHR, it has many more malign effects, allowing a progressive liberal agenda to lock in policies and values which are widely hated by the majority.

Fundamentally, the ECHR underpins the entire post-war values system upon which our social democracy is built. Thus democracy may operate only within the parameters defined by the legal precedents set by it. It stands as a barrier to the kind of radical reforms that voters are increasingly demanding from their politics. It is viewed as bloated, obsolete and an affront to democracy.

Arguing this case, though, will require more than sporadic blog posts. My intention is to assemble a comprehensive study, to the best of my limited abilities and non-existent legal education, in the vague hope that we’ll at least have better arguments about it when the time comes. Since I’m likely well out of my depth on this one, any hints and suggestions are appreciated. As ever, subscribing to this Substack will help a great deal.