Conservatives and the ECHR


Suella Braverman, the Home Secretary, wants to take the UK out of the ECHR

December 2022

This post is based on an interesting article in yesterday’s Guardian newspaper, written by Martin Kettle, concerning the Home Secretary, Suella Braverman’s desire to take the UK out of the European Court of Human Rights. Some of the piece concerned his thoughts of the future of Rishi Sunak which is a political discussion upon which we do not comment. Our concerns focus on human rights implications of Braverman’s wishes to take the UK out of the purview of the ECHR.

Kettle notes that the proposed withdrawal is not Conservative Party policy, nor was is it in the latest manifesto in 2019. This indicates that Ms Braverman is operating on her own. The Home Secretary is one of a number of Conservatives (but by no means all) who see the ECHR as a kind of constraint to their ability to manage the nation’s affairs most particularly in connection with refugees and immigration.

This erupted a few months ago with the last minute abandonment of the flight to Rwanda (which was to take place a stones throw from where this post is written), in which the European Court played a key part. Immigrants crossing the Channel in small boats has been a regular news feature over many months and has caused considerable anger among many. As was noted in our last post, by denying safe and legal means to apply to come here, those desperate to escape war or persecution are more or less forced to use these means. When Suella Braverman was questioned about this last week in front of a select committee, neither she nor her PPS, were able to able to provide a convincing answer.

Kettle goes on to say that the arguments around human rights law “encapsulates and stimulates the Tory party’s haphazard retreat into a bubble of English exceptionalism. Whether it is expressed by Braverman or Dominic Raab, the common threads of this are a bogus sense of victimhood (exemplified by the delusion that Britain is uniquely affected by migration) and belief in greatness frustrated (the lies of Brexit) and an impatience with conventional wisdom in favour of reckless contrarianism”.

One of the party’s electoral strengths over many decades was that it claimed to be the party of law and order. Tougher and longer sentencing, crackdowns on this or that crime, support for the police and other actions enabled it to claim that they were the party to vote for if you wanted to sleep safely in your bed at night. Dominic Grieve, the former Attorney General, has noted that today’s ministers seem to display ‘a persistent and almost endemic frustration with legal constraints‘. A combination of rage by some sections of the media about the Channel crossings, combined with their large majority, seems to lead them to believe they can ignore domestic law, international laws and treaties. Laws which stand in the way of ministers pursuing a particular goal are fit only to be ignored or discarded.

In his recent talk to the Judicial Institute (6 December 2022) he refers to the ‘novel constitutional position: that governments are enjoying the confidence of a parliamentary majority have essentially a popular mandate to do whatever they like and that any obstruction of this is unacceptable’ (p10). He points out that this is not the monopoly of the Conservatives – Labour when in power went cold on the HRA and secretly aided American renditions post 9/11. This idea that the law is of value only if it suits the policy position of the government in power is a dangerous one. It goes against the Common Law principle which is key our unwritten constitution. Combined with a belief that a large majority means the public at large are at one with this is also an assumption too far. When there was a Daily Mail assault on the judges putting their photos on the front page under a headline ‘Enemies of the People’ (4 December 2016), because they took a decision their editor did not like, it was noticeable that the then Attorney General, Liz Truss, did not condemn this.

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