We have been here before. Several times. Five consecutive Tory PMs up to Rishi Sunak speculated about, or advocated, repudiating the European Convention (and Court) of Human Rights, which Britain helped draft in 1951, and of which Boris Johnson had previously spoken warmly as “one of the great things we gave to Europe”. Theresa May advocated withdrawal as her alternative to leaving the EU.
Each time, quietly initially, there were murmurs from this side of the Irish Sea warning that the purpose of securing a notional sovereign right to disregard the court over migration might actually also critically undermine the Belfast Agreement upon which peace on this island rests. As an aside, sovereignty arguments notwithstanding, there are also philosophical/jurisprudential arguments against membership overt the nature of the court which have echoes of the Brexit debate.
Oxford academic Prof Richard Ekins, a withdrawal proponent, argues that “The problem with the ECHR ... is not that it is an international treaty. The problem is that the court has made it into a dynamic treaty. Rather than simply upholding the terms agreed by the member states, the Strasbourg Court has, since the ‘70s, said that the ECHR is a ‘living instrument’, the meaning of which changes as the court decides a succession of cases and divines a changing European consensus.”
This sounds a bit like what the UK said about the “impossibility” of dynamic alignment of their trade regime with the single market.
Last week, as leading Tories fulminated against their supreme court for ruling unlawful wretched plans to expel asylum seekers to “unsafe” Rwanda, some of the usual suspects led by the new champion of the right – sacked home secretary Suella Braverman – again insisted that the only way to safeguard the policy was to repudiate the convention. Rishi Sunak declared he was determined to see it through and open to the possibility of withdrawing from it. And again, quietly, warnings began to be heard.
Not only the Americans but the EU is likely to take countermeasures against the UK
Initially word came last week from anonymous US diplomatic sources, staunch defenders, like their president, of the Belfast Agreement – Biden threatened to pull the plug on a US-UK trade deal over threats to the agreement and tensions over it have been a recurring undercurrent in the relationship. These are voices that would be closely attuned to Irish sensitivities. One can only speculate that Dublin is yet reluctant publicly to be seen to enter the highly political immigration debate over at best tentative proposals. But the Guardian reports senior Tories are already up in arms and threatening to vote against the government, particularly in the House of Lords, where a Bill is likely to be defeated.
UK membership of the convention matters not only for the important principle of international protection of human rights, but because it is one of the pillars on which the Belfast Agreement rests.
As one Belfast legal researcher, Anurag Deb, has put it, the convention is a part of the mutual respect that is central to the Belfast Agreement, “woven inextricably with the framework of rights and safeguards which the GFA envisioned for Northern Ireland. It is neither detachable from the text of the [agreement] and nor is it replicable by some statutory simulacrum enacted either at Westminster or Stormont.”
Not only does it set benchmarks for human rights standards but it requires the Northern Ireland authorities to provide “direct access to the courts, and remedies for breach of the convention, including power for the courts to overrule Assembly legislation”.
Repudiation in full or part of the convention would precipitate serious diplomatic and reputational confrontations well beyond the immigration issue it is intended to tackle
Some “moderate” Tories have argued, and ministers hinted, that complete repudiation of the convention might not be necessary if the Commons simply limited plaintiffs’ recourse to the court itself and not through the UK courts that the convention’s incorporation into British law made possible. A denial of direct access would, however, blow a big hole in the Belfast Agreement.
And, as Prof Fiona de Londras of the University of Durham has observed, “any suggestion that decisions of the [convention] that are directly applicable to the UK would only be advisory ... would require an amendment of the convention, and it is highly unlikely that the UK would achieve consensus among the states to do that”. No point in half measures.
Repudiation in full or part of the convention would precipitate serious diplomatic and reputational confrontations well beyond the immigration issue it is intended to tackle. Britain’s international reputation was seriously damaged during the Brexit negotiations when it threatened to disregard international treaty obligations, some likely to jeopardise the Belfast Agreement. It has never recovered.
Not only the Americans but the EU is likely to take countermeasures. The convention is also, for example, a crucial part of the UK-EU Trade and Co-operation Agreement, and its repudiation would be grounds, the union has made clear, for the EU to terminate the provisions on law enforcement and judicial co-operation in criminal matters. A real can of worms.