WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
February 19 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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The ‘fringe lunatics’ go centre-stage as Tory leadership election hots up

The ‘fringe lunatics’ go centre-stage as Tory leadership election hots up

The problem with running a successful political campaign built on lies and delusion is that only two classes of politician are left standing at the end of it: the lying and the deluded.  Even though the Brexit referendum was six unfathomably long years ago, Conservative politicians, including prime ministers, still mostly belong to one (or both) of these classes. Theresa May was deluded, somehow believing that she could deliver a Brexit that satisfied the tub-thumpers in the ERG and that kept the UK as one trading bloc. Boris Johnson, obviously, was a liar, trusting that as long as he kept lying long enough and competently enough, he could keep his office and all the prestige that came with it. 

Nor does it seem likely that the Conservative party is going to be cured of this affliction any time soon.  Europe is still its animating force. While none of the current candidates for leader have anything approaching a coherent philosophy on how to engage with the EU, with most opting to stick their heads ever deeper in the sand, Europe still is at the forefront of their minds.  This time, they’ve moved onto a new front, with Suella Braverman at the vanguard, advocating our departure from the European Convention on Human Rights. 

As I wrote almost two years ago, this was inevitable.  Brexit was always going to be an economic and political failure, and the Conservatives were always going to need a new bugbear.  The European Convention on Human Rights, with its irritating tendency to rule in favour of immigrants and other minorities, and to refuse to bow to political pressure, was the natural choice.  Couple this with the fact that many Brexit voters thought we had already left the ECtHR and will be apoplectic at discovering we haven’t, and you have a ready made tinderbox, ready to spark members and the country into a fury of support. 

But while Brexit was relatively straightforward to deliver, abandoning the ECHR and leaving the remit of the European Court of Human Rights (ECtHR) will prove more problematic.  At first glance, the two are similar.  We joined both through signing treaties that were signed, ratified and incorporated by Parliament.  In the case of the EU, the Treaty of Accession and the European Communities Act, both in 1972, and in the case of the Council of Europe, the Treaty of London in 1949, with the ECHR signed four years later.  Looking at these treaties alone, leaving the Council of Europe and the ECHR seems the easier of the two, with Article 7 of the Statute of the Council of Europe providing a clear mechanism for withdrawal, unlike the EU.  All a member state must do is notify the Council of their intention to resign.  

Even if the Supreme Court is likely to require any withdrawal from the ECHR to be approved by Parliament, consistent with its decision in Miller I, this would not be a difficult hurdle for a new leader to surmount, particularly if it formed a core part of their leadership campaign.  What will prove more difficult is navigating the provisions of the Good Friday Agreement and the EU Withdrawal Agreement.  Under the Good Friday Agreement, which brought the Irish Troubles to an end and has been a crucial bridge to peace on the island, the British government is obliged to ‘complete incorporation into Northern Ireland law the European Convention on Human Rights, with direct access to the courts…and remedies for breach of the Convention’.  

It is difficult to envisage how the Good Friday Agreement can be respected if the UK leaves the ECHR.  In theory, a bill could be enacted that confined the jurisdiction of the ECtHR to Northern Ireland, although that would open up an entirely new can of worms, with the courts grappling with how citizens on the mainland can be deprived of rights possessed by their Northern Irish brethren.  Others have suggested that Parliament could legislate for the text of the European Convention on Human Rights to be incorporated into Northern Irish law, with ‘courts’ in the GFA interpreted to mean domestic courts, or with a right of appeal to Strasbourg preserved in domestic legislation.  The sheer complexity of this proposal proves its absurdity, including the atextual notion that ‘courts’ in this context might mean anything but Strasbourg, and that is before you even get into the question of how the ECtHR has applied the principle of extra-territoriality, which obliges member states to uphold rights in other regions under its control.  Nor, if the government did try to keep some form of appeal to Strasbourg, is it clear that the Council of Europe would be willing to allow the UK to resign its membership while sporadically accepting the jurisdiction of the ECtHR.  

 As if that were not enough, the political trade agreement recently signed with the EU also binds the UK to the ECHR.  While the ECHR may not be an institution of the EU, and while the EU may not yet be a signatory to it, the two systems operate near hand in glove.  Accordingly, in the 2018 Withdrawal Agreement’s Political Declaration, the UK has promised to remain a signatory to the ECHR, and the European Parliament passed two resolutions emphasising the need for the UK to remain a party.  Meanwhile, Chapter 3 of the EU-UK Trade Agreement, which deals with questions of security, obliges the UK to give effect to the ‘rights and freedoms in that Convention domestically’.  Admittedly, the UK could withdraw from Chapter 3, with the rest of the Agreement still standing, although this once more embroils the country in needless complexity, and raises many questions, including that of sanctions.   

There is a reason that the government’s recent Bill of Rights retained the ECHR and the oversight of Strasbourg, as even Boris Johnson and Dominic Raab, the Lord Chancellor, recognised that any other route was impassable.  Nonetheless, Braverman, who must have had these discussions in Cabinet as the Attorney General, has put forward  something she has called the ‘International Common Law Rights Charter’.  In her mind, this would allow countries who share a ‘similar human rights tradition and constitutional law history’ to ‘form a political commitment’.  It is not clear what the purpose of this charter would be, other than to pay lip-service to human rights, nor how our European neighbours do not share the UK’s human rights tradition.  As with the government’s current Bill of Rights, it is a solution in desperate search of a problem.

While economically and politically illiterate, the Brexit debate was at least politically feasible.  The fact that a candidate like Braverman has not only been Attorney General (one of the most important law offices in the country), but feels fit to stand for leader on an intellectually empty policy shows how far the Conservative intellect has fallen.  Even on the economy, previously the Conservative’s

intellectual stronghold, none of the candidates have a single coherent policy on how to deal with the economic crises barrelling down the tracks.   All of them are spouting some form of ahistorical, economically flawed version of Thatcherism, or simply promising a cornucopia from the Magic Money Tree.

The natural conclusion is that, having succeeded in the ambition that drove them for so long, but having it deliver nothing, the collective Conservative mind has been driven to insanity.  Almost everyone of any ability has been driven out or has abandoned the party, with the dregs not so much floating to the top as being all that can be scraped from the bottom of the barrel.

That means that candidates like Braverman and Patel, who seems destined to jump on the anti-ECHR bandwagon after the Court interfered in her grand plan to deport asylum seekers to Rwanda, are no longer fringe lunatics, but genuine contenders for leadership.  The country was right to want Johnson gone, but we may find that the field he has sown leads to an even more terrifying harvest of ministers.  The country should be afraid.