Nobody should be surprised that Boris Johnson favours a referendum on leaving the ECHR, as his book now makes clear. Boris is an instinctive populist and maverick, who cordially despises the educated progressive establishment which argues for continued membership. He is also right.
Intellectually, the case for remaining in the ECHR gets ever flimsier
Intellectually, the case for remaining in the ECHR gets ever flimsier. When we ratified it in 1951, the convention was fairly uncontroversial. Against the background of the horrors of 1945, most of its provisions quite intentionally tracked the practices traditionally associated with the activities of Nazi and fascist regimes: mass murder, midnight searches of homes, overt torture, slave labour, forced displacement, wholesale suppression of dissent, and so on. Fair enough: no one thinks decent governments should be doing this kind of thing, whatever their voters’ views.
Now, the words remain, together with the implicit idea that human rights should be outside the ordinary political process. But in the last 30 years a free-wheeling Strasbourg court has expanded the ECHR’s ambit out of all recognition and slowly changed it into something resembling a constitutional, and distinctly progressive and at times very controversial, bill of rights.
Furthermore, while once merely providing an after-the-event check on the propriety of past action by a government, the Strasbourg court has now arrogated to itself a power essentially to intervene in the national legal process by ordering preliminary measures. These we have seen first hand: witness the midnight injunction from an unnamed functionary in Strasbourg that in 2022 prevented the first Rwanda flight taking off.
Nor are the arguments regularly trotted out in favour of staying very convincing. True, we helped draft the Convention in 1951. But why that should constrain us to continue supporting the very changed institution it has become in 2024 is entirely unclear. True also that Russia and Belarus, both pretty unspeakable regimes, are outside the ECHR. But so too are Australia and Canada, which have managed to avoid tipping into fascism despite not being members of it or any other international human rights agreement. For that matter, Turkey and Azerbaijan are ECHR members. Given the choice between living in, say, Sydney or Baku, I know where I would feel safer.
In short, the ECHR, once a guardian of democratic decency, is now a serious drag on popular accountability. Some may disagree, but there is a strong case made by figures such as Lord Sumption expressing worry about it. At the very least, the British people deserve their say.
What of the Conservatives? Boris’s stand certainly splits Tory thought. Leadership contenders Tom Tugendhat and Robert Jenrick will likely agree with him, James Cleverly is less clear and Kemi Badenoch downright sceptical. Nevertheless, when it comes to a vote later this year party members should carefully consider, if they can, backing a candidate calling for an ECHR referendum.
For one thing, it will help distinguish the Tories from Labour. Labour’s popularity is already in freefall and likely to continue that way. Yet it is a racing certainty that the party will continue to regard the ECHR as sacrosanct. An opportunity like this to put clear water between an increasingly toxic government party and a rejuvenated opposition should not be passed up lightly.
Further, even if for the moment the polls say only a minority back ECHR withdrawal, there remains deep concern, especially among the just-about-managing classes in less rich areas, about the effect of the ECHR in hampering the fight against crime and excessive immigration. This concern is likely to gain momentum. Only last month, for example, we learnt that human rights prevented us deporting a vicious and mentally unstable Ugandan murderer simply because he could not receive proper treatment in Uganda. There will undoubtedly be more cases like this. With each one of them, what support there is for the ECHR is likely to ebb further away. In five years’ time, advocates of withdrawal may for once be on the right side of history.
And, of course, we can leave best till last. Any commitment to hold a referendum on the ECHR would skewer Labour nicely. Defence of the human rights status quo, to which it is wedded, is getting more difficult by the week. But Labour’s bind would be much worse than that. Boris’s proposal, remember, is merely to put ECHR membership to a vote. How can Labour oppose this? Only by insisting that the ordinary people of this country need to be denied a say on a matter of constitutional importance which affects the lives of each one of us and indeed the democracy we live under. Properly played, the Tories could make this into a nightmare for a tired Labour government seeking re-election in or before 2029. Party members, here’s your big chance to play your part.
Comments