Rishi Sunak senses, rightly, that tough talk on the Channel migrant issue will go down well in both middle England and the Red Wall. One can see why. No small country with overstressed social provision should tolerate an annual influx of irregular migrants sufficient to populate a medium-sized town landing openly on its beaches. That they are from countries where they are in no appreciable danger, can mouth the word ‘asylum’ and then either disappear or use every intricacy of the law to stymie attempts to deport them feels intolerable to many.
Last week Rishi floated an idea to stop this. It would subject those who arrived irregularly on our shores to automatic detention and deportation, and prevent them claiming asylum at all until they were out of the country. We have not yet seen the details, but one thing is clear: any such system would face human rights objections. The government realised this, and its answer was uncompromising: irregular migrants issuing human rights challenges to refusal of asylum would get no special treatment. Pushed to say what would happen if Strasbourg disagreed with such a development (which it might well do), Rishi bit the bullet. He cleared his officials to confirm that the government could not rule out the UK leaving the European Convention on Human Rights (ECHR) altogether.
It will take some time for human rights scepticism to become mainstream. But the process has now begun
These comments understandably created uproar among those who as a matter of faith see ECHR membership as a non-negotiable requirement for acceptance in the community of decent nations. But quite apart from the migrant crisis and electoral considerations, Rishi is actually on quite strong ground here. Viewed dispassionately, the arguments for staying in the European human rights system are not all that strong. (If this initially shocks you, compare Australia, Canada and New Zealand, all vigorous liberal democracies outside the ECHR, with dodgy regimes like Azerbaijan and Turkey, both firmly within it.)
For one thing, bear in mind that the ECHR today is nothing like the ECHR initially co-sponsored by Britain in 1949. In 1950 the Convention was seen largely as an interstate instrument aimed at making it harder for a state to backslide into fascism German or Italian-style. (The rights stated in the Convention, indeed, are nearly all directly modelled on the need to suppress what were seen as particular practices developed under Nazism.) Its growth into a quasi-constitutional document, and into an institution where the right of individual petition, once an optional extra, now makes up nearly all claims, is a later development which we certainly never signed up to originally.
Secondly, since about 1980, the rights themselves, once interpreted as limited to checking seriously outrageous misuses of state power, have been enormously extended by the Strasbourg court. The right to private and family life under Article 8, for example, now informs a great deal of immigration law, outlaws at least some limits on abortion and largely controls the boundary in media law between privacy and free speech. Article 14, making the obvious point that everyone is entitled to human rights whatever their status, has, in certain cases, been interpreted as creating a free-standing right against discrimination, and so on.
Now, all these may be good or bad things. But they smack more of the development of a social democratic political agenda than things so vital that a country cannot be regarded as civilised unless it continues to commit to them.
Thirdly, there is a connected point: though parliament is technically supreme, the UK is required under the ECHR to obey Strasbourg’s rulings whatever parliament or the electorate may think. Under the original idea of an ECHR limited to monstrous malpractices, this suspension of democratic legitimacy was possibly justifiable.
But the further contraction of the democratic sphere brought about by the wholesale extension of those original rights is much less attractive. This is particularly so where the (unelected) judges of the Strasbourg court openly see the ECHR as a ‘living instrument’ always open to extension. Added to this is, as the court said in a judgement two weeks ago, they now seem to accept that where they see a ‘clear ongoing trend’ in favour of extending a right, their judgments should give it a helping hand and press any holdouts to join the progressives.
Could Rishi use these arguments if need be to take us out of the ECHR? For the foreseeable future, unfortunately, it seems unlikely: particularly since he heads a government with in all probability less than two years to run. He could always try: but the administrative establishment and almost the entire academic world would oppose him. The House of Lords, increasingly a bastion of successful and self-satisfied liberals, would overwhelmingly reject any legislation limiting the writ of Strasbourg, possibly forcing the use of the Parliament Act.
Even in the Commons there might be difficulties. There remains a staunchly statist and pro-Convention rump of Tories, led by the likes of Sir Bob Neill and reportedly including ex-Lord Chancellor Robert Buckland, who continue to worship at the human rights shrine and would undoubtedly vote with the Opposition to defeat any such measure.
Nevertheless, this is a significant and important move by Rishi. Just as it took some time for the proposal to leave the EU to cease to be unsayable, it will take some time for human rights scepticism to become mainstream. But the process has now begun. A number of Tories, especially from the Red Wall, have already rallied behind Rishi, as have some of the media. For the moment, it is best to regard this development as a ballon d’essai. In future, it may well be seen as obvious that the ECHR is no longer good for the people of Britain or for humanitarianism, and that it must be ditched.
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