The small boats issue continues to dominate the summer headlines. The movement of large numbers across the Channel in dangerous and often overcrowded vessels is a genuine point of concern for the public when it comes to the effectiveness of our border controls.
he most recent tragic events where a further six people died have emphasised the urgency of the situation. Frustration has grown after the Court of Appeal ruled by a majority that as it stands, the policy of using Rwanda as a third country is unlawful.
With the Rwanda case now going to the Supreme Court this Autumn, the solution advocated by some to the small boats issue is to take the United Kingdom out of the European Court of Human Rights (ECHR). This is a profoundly mistaken view, which misunderstands the true nature of our membership of the Convention and the wider political and legal context, not to mention the UK’s international reputation. In a nutshell, this is not serious politics.
Withdrawing from the Convention would lead to a bitter period of uncertainty, division and executive paralysis
The role of the Strasbourg Court in UK law is very different indeed from the role of the Court of Justice of the European Union in the law of EU member states. Strasbourg caselaw is advisory only, and whilst its final judgements in cases directly involving the UK are binding, the number is but a handful per year. In the past, on the vanishingly small number of disputes such as prisoner voting and the Abu Qatada case, the issues were resolved sensibly and successfully. Reform of the Human Rights Act 1998 in a way that emphasises the discretion of our UK courts when it comes to Strasbourg decisions is a better course of action, and one that I was preparing to pursue in 2021. Much valuable time has been lost, but a government bill to achieve this is still possible in the next session.
Looking at the legal implications of departure, the 1998 Belfast Good Friday Agreement is underpinned by the ECHR, describing it as a safeguard to protect the rights of both communities in Northern Ireland. Attempting to circumvent this, by negotiating some kind of exemption for Northern Ireland from the rest of the UK would create an unwelcome tension with our international law obligations and upset the delicate balance of the Northern Irish politics. Further, ECHR rules and principles are also central to the 2020 UK-EU Trade and Cooperation Agreement, and to police and judicial cooperation for example.
Membership of the Convention also brings with it the Council of Europe. Rapid demographic change, deteriorating international security and devastating climate change has led to increasing instability in the global south, fuelling ever greater numbers of people trying to come to Europe. Such problems can only be addressed through coordinated climate action and multilateral state support, not through retreating from international forums like the Council of Europe, a departure that would be inevitable after denouncing the ECHR.
Abdicating our responsibilities and withdrawing from international organisations would not only weaken our room for manoeuvre in an immediate practical sense but would cause serious reputational damage to the UK. British Conservative lawyers led by Sir David Maxwell-Fyfe KC, one of the prosecutors at Nuremberg and later Lord Chancellor, drafted the original European Convention on Human Rights in 1950, strongly supported by the then leader of the opposition, Sir Winston Churchill. With that proud history, do we really want to be the only democratic nation to ever leave the ECHR?
I remain optimistic that the government will make the right choice and preserve our ECHR membership. The successes of the deal with Albania and the signing of the Windsor Framework illustrate what can be achieved when we work with our allies in good faith to address common challenges. Withdrawing from the Convention would lead to a bitter period of uncertainty, division and executive paralysis. It is a decision of such constitutional importance that a referendum would be necessary before it was implemented. Do we really want to spend time, cost and energy on such a fool’s errand? The answer must be a firm “no”.
