How things change. Five years ago few electors cared about the UK’s membership of the ECHR. Today that same convention, with its baneful effect on our ability to police our borders and keep out undesirables, is fast taking centre stage and becoming Concern Number One with burgeoning numbers of voters: voters who, as the government knows to its consternation, increasingly doubt Labour’s ability or even willingness to do much about it.
You can have ECHR membership plus loyal adherence to its requirements, or alternatively you can have a proper border policy. You can’t have both
No doubt this is why the Attorney-General Lord Hermer, undoubtedly with the backing of the PM, weighed in this week. He announced that while the government remained committed to remaining a member of the ECHR and loyally applying its provisions, it accepted that it did create grave problems over immigration and asylum. But the administration, he said, had the answer. It would rein in what it saw as an over-generous interpretation of Articles 3 and 8 (dealing with inhuman treatment and family life) in immigrants’ favour, if necessary by passing primary legislation to achieve this end.
Lord Hermer no doubt hopes that his measured words will satisfy critics and get Labour out of its difficulties. In fact they will do neither. If anything they will simply make a bad situation terrible. Here’s why.
First, his plan will not work. The difficulty with the ECHR is that it is an international convention and the right to interpret it lies not with the UK courts, still less the UK government, but with the European Court of Human Rights in Strasbourg. Like it or not, while we are members we are obliged to make sure this is the interpretation our courts follow. Of course this government could pass legislation explicitly requiring a different reading, which courts here would then be bound to respect. But if it did the result would be a barrage of judgments from Strasbourg telling us that we were now in breach of the convention and requiring us to change our law. Back to Square One.
In short, you can have ECHR membership plus loyal adherence to its requirements, or alternatively you can have a proper border policy exercised in the interests of the people of this country which will in the national interest occasionally break up families or send unlawful entrants back even if they face ill-treatment. But you can’t have both. For an ordinary Labour MP to try to fudge this issue is understandable, and a number have done just this. For Lord Hermer, a lawyer and a human rights expert to boot, this is much more dangerous. He clearly ought to know better, and this fact will not be lost on any intelligent observer
Secondly, this episode will neatly remind everyone that the ECHR has the Labour party in a serious bind. Reform has explicitly said that continued membership of the ECHR is inconsistent with a coherent immigration party, that they choose the latter, and therefore that the ECHR that should go. The Tories have not gone this far: nevertheless they too have seen the clash, and most of the leadership now confess that in so far as the European human rights scheme does impair border control they cannot rule out withdrawal.
Not so Labour. Official party policy is monolithic: we must remain members of the ECHR come what may, and whenever Strasbourg tells us to jump we will in the name of the rule of law. To this extent, both Keir Starmer and Lord Hermer are not only ECHR believers, but true believers: witness Lord Hermer’s reverent assurance to an assembled Council of Europe assembly last January that, ‘the new UK government will never withdraw from the European Convention on Human Rights, or refuse to comply with judgments of the court, or requests for interim measures given in respect of the United Kingdom.’
Unfortunately this is increasingly isolating the Labour leadership. Away from the leafy legal precincts of legal North London and the academic world many of its leaders consort with, most of the voters it needs to keep onside do not give a fig for the ECHR. What they are seriously concerned about is the need to control the flow of immigration fast, and speed up the deportation of those already here who abuse our hospitality. Even the parliamentary party is no longer reliable: it is no secret that a number of its Red Wall MPs, including the admirably independent-minded Graham Stringer in north Manchester and Jonathan Brash in Hartlepool, have bravely broken ranks on the ECHR issue.
Labour desperately needs a reset on the ECHR. Unfortunately Lord Hermer, by nailing his colours to the Strasbourg mast, has not only shown an impeccable sense of mistiming; he has set back by at least some months Labour’s prospect of making itself acceptable to the just-about-managing from Billericay to Blackpool. More than ever Keir Starmer urgently needs a new Attorney General.
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