Last night, during his first debate with Kemi Badenoch, Robert Jenrick was keen to highlight his flagship policy on exiting the ECHR, using it as a dividing line to emphasise his anti-immigration credentials. He pitched the question as ‘leave or remain’.
This is an unfortunate move on two fronts. First, leaving the ECHR is unlikely to have the practical effect he hopes in stopping the small boats, or combatting illegal immigration. Second, it risks looking like he is merely chasing the Reform vote and is uninterested in reuniting his fractured party.
It risks misleading Conservative party members that there is some quick fix to this issue
On the legal question, anyone who has read the Supreme Court’s judgment in the Rwanda case will know that the ECHR was not the only issue which stopped the UK removing people claiming to be refugees.
There are also provisions in the UN Refugee Convention relating to ‘non-refoulement’ (which require that refugees are not returned to a country where their life, or freedom, would be threatened on account of their race, religion, nationality, membership of a social group or political opinion). And there is the UN Torture Convention, which prevents the return of people where it is likely they will be subject to torture.
The principle of non-refoulment is protected in domestic law under various statues. The Supreme Court made it made very clear that its decision was not based solely on the UK’s obligations under the ECHR. As Kemi Badenoch has previously argued, leaving the ECHR is an ‘easy answer’ to a difficult question. It risks misleading Conservative party members that there is some quick fix to this issue.
Of course, in order to send a message to the right-wing of the Conservative party, Jenrick could denounce swathes of international law which protect refugees and repeal the relevant domestic laws. He could even seek to restrict access to judicial review. However, such actions could have unintended consequences.
It would echo the famous scene in A Man for All Seasons where William Roper argued that he would ‘cut down every law in England to get to the devil’, and Thomas More replied: ‘Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?’
As David Davis set out last week, the ECHR contains a variety of important protections for individuals which go well beyond asylum seekers. Examples have included: protecting the religious rights of a British Airways worker suspended for wearing a crucifix; protecting individuals who had not been charged with a criminal offence from being placed on an extremism database; and preventing the government from abusing bulk surveillance powers. Such protections are relevant under any government. Anyone who worries about the state abusing its powers should be slow to dispense with them.
I have previously set out some of the practical difficulties the UK would have if it left the ECHR, especially when it comes to the Good Friday Agreement and security and justice co-operation with the EU. Jenrick has not set out a realistic solution to these issues.
On the question of asylum it is also worth noting that in its Rwanda judgment the Supreme Court did not say that the ECHR prevented the removal of asylum seekers to other countries, as Jenrick appears to be arguing. It simply said that Rwanda was not a safe country to which people could be removed. It might well be possible to outsource asylum seekers for processing to another country. All eyes are currently on Italy’s scheme with Albania, which is said to have opened for business last week. A wise leader might look at how such plans worked in practice, before advocating quitting the ECHR.
Jenrick’s policy also risks cementing the old adage of the Conservatives being ‘the nasty party’. His new hard-right persona must leave even some of his supporters wondering if they are rooting for the anti-hero.
This is not to say that there isn’t an issue to be addressed when it comes to migration. But it should be done so proportionately and pragmatically. There are clearly concerns about abuse of the asylum system across Europe. Last week, it was reported that Poland plans to suspend the right to asylum on the grounds that people smugglers, aided by Russia and Belarus, were abusing the system. Anti-migration parties are making significant headway across the Continent, including in Italy, France and the Netherlands.
Are there any practical solutions to these problems? We could make the Home Office more efficient at identifying and removing migrants swiftly – before they establish themselves in the UK – something it has been notoriously bad at in the past.
The government also could consider whether there is cross-European support for revising some of the rights that may be being abused. For example, if there are real concerns about the way the courts approach the right to family life and the deportation of foreign national criminals, it could be possible to amend the Convention at the Council of Europe. Kenneth Clarke took this approach in 2012 when the government agreed the Brighton Declaration on ECHR reform. Such an approach could work again, if a consensus can be found with our European neighbours.
Finally, the government could look at whether there is any merit in reconsidering the idea of identity cards, to prevent individuals disappearing into the black economy.
There is no need to throw the baby out with the bathwater by quitting the ECHR. Doing so would create a number of unfortunate results, without actually resolving the issue at hand.
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