X Close

The case for leaving the ECHR Legislative freedom will fix more than the Channel crisis

The Rwanda showdown must first be approved by the Supreme Court (Matthew Lloyd/Getty Images)

The Rwanda showdown must first be approved by the Supreme Court (Matthew Lloyd/Getty Images)


August 11, 2023   5 mins

Was it Theresa May who broke the taboo? In April 2016, in her only public speech during the Brexit referendum campaign, the then Home Secretary reluctantly concluded that the UK should remain in the EU, but leave the European Convention on Human Rights. This was the first time a cabinet minister had openly called for withdrawal from the ECHR.

Of course, when she became Prime Minister three months later, she attempted no such thing, perhaps reasoning that leaving the EU was quite enough work for the moment. Still, the question has not gone away. The Government says that it remains committed to UK membership of the ECHR, but, as the Channel crisis continues, its commitment seems to be waning.

Earlier in the year, Rishi Sunak, was reported to be considering contesting the next election on a commitment to withdrawing from the ECHR if the European Court of Human Rights were to find his new immigration legislation incompatible with the Convention. Only this week, Robert Jenrick, the Minister for Immigration, said that the Government would do “whatever is necessary” to stop “the small boats”, clearly implying that this included withdrawal from the ECHR.

The Supreme Court will soon hear the Government’s appeal in the Rwanda litigation, and the Government may well prevail. The Court of Appeal’s recent judgment, which held that removing asylum-seekers from the UK to Rwanda would breach Article 3 of the ECHR, is open to serious question, and the Supreme Court under Lord Reed’s leadership is a much more legally disciplined institution than when he took over from Lady Hale in January 2020.

If the Government’s appeal succeeds, the litigants will proceed to the Strasbourg Court, which may eventually find against the UK. But more immediately, well in advance of any final judgment, an anonymous judge of the Court may indicate “interim measures” under Rule 39 of “The Rules of Court”, which would instruct the UK not to carry out removals until some later date.

The Strasbourg Court’s Rule 39 practice is incompatible with the text and structure of the ECHR and should be firmly rejected: the Convention confers binding force on final rulings of the Court, but not on “interim measures”. Section 55 of the Illegal Migration Act 2023 seems to recognise this, providing ministers with the power to decide whether or not to remove a person from the UK despite an “interim measure”. This is an oddly framed power, and it is a miracle that it was ever enacted. Between government lawyers and the law officers, it is very difficult for the Government even to put before Parliament legislation that the Strasbourg Court might in the end disapprove.

This points to a wider problem with ECHR membership. The doctrine of parliamentary sovereignty provides that whatever the King-in-Parliament enacts is law. Legislative freedom is the centrepiece of the Westminster model and it is for Parliament, in conversation with the people, to decide freely what the law should be. However, membership of the ECHR and subjection to the jurisdiction of the Strasbourg Court means that Parliament’s freedom to legislate is exercised under a cloud: deliberation within Parliament is often distorted by reasoning not about the merits of proposed legislation but about its compatibility with the case law of the European Court of Human Rights. The problem has been vividly apparent in relation to the Government’s various attempts to address lawfare against UK armed forces.

Strictly, Parliament is free to enact whatever legislation it sees fit, even if this is incompatible with the UK’s international treaty obligations: it is crystal clear that legislation which is incompatible with a treaty remains valid law, which everyone, including civil servants, is obliged to obey. Still, there are very good reasons for the Government to be slow to propose, and for Parliament to be reluctant to enact, legislation that would place the UK in breach of its international obligations. The UK’s reputation matters: so too does international order.

The problem with the ECHR, then, is not that it is an international treaty. The problem is that the Court has made it into a dynamic treaty. Rather than simply upholding the terms agreed by the member states, the Strasbourg Court has, since the Seventies, said that the ECHR is a “living instrument”, the meaning of which changes as the Court decides a succession of cases and divines a changing European consensus.

Deploying this approach, the Court has remade the Convention, imposing far-reaching new obligations on states and driving its own vision for social, moral and political reform across Europe. Most strikingly, the Strasbourg Court has invented a whole new European law of immigration and asylum which has no foundation in the text. But the Court’s case law distorts legislative deliberation and government policy-making across the field, including in relation to welfare policy, social policy, penal policy, counter-terrorism, military action, housing, taxation and press freedom.

There is, as a result, a vast gap between the express terms of the ECHR and the case law that the Strasbourg Court now applies. Enthusiasts for the status quo routinely overlook this.

In a nicely executed piece of Guardian agitprop in 2016, responding to Theresa May’s call to leave the ECHR, Patrick Stewart features as a new Prime Minister railing against Europe’s assault on British sovereignty. At one point, he asks his cabinet: “What has the ECHR ever done for us in return?” Nothing, reply his ministers, apart from providing the right to fair trial, the right to privacy, freedom from torture, freedom of religion, freedom of expression, freedom from discrimination, freedom from slavery and so on.

The response is absurd because the protection of rights and freedoms in the UK long predates the ECHR — we do not owe fair trials or the abolition of slavery to the Strasbourg Court. The sketch itself recognises this when it goes on to say that the British drafted the Convention to help Europe sort itself out.

In any case, the problem is not with the terms of the ECHR, but with the Strasbourg Court’s departure from them. This is revealed by what the sketch’s writers left out. At one point, Stewart mocks David Cameron’s remark about feeling “physically ill” at the thought of introducing votes for prisoners. But the sketch does not include prisoner voting in its litany of “what the ECHR has done for us”. Nor does it mention that the Strasbourg Court invented a right to prisoner voting, a right which the member states did not intend to create.

The UK Parliament, in response, refused to change the law to comply with the Strasbourg Court’s 2005 ruling. Yet 12 years later, the Committee of Ministers, which monitors compliance with judgments of the Strasbourg Court, gave the UK a clean bill of health — a fudge designed to obscure the fact that the UK had not changed its legislation as the Court demanded.

Principled defiance of the Strasbourg Court is therefore an option. With Parliament’s support, the Government could refuse to comply with judgments that brazenly misinterpret the text of the ECHR and thus depart from the terms that the UK, like other member states, agreed. The Supreme Court made the case for such defiance in 2015, in a judgment about the case law of the Court of Justice of the EU, which is also inclined to exceed its jurisdiction. Still, it is much easier for Parliament to refuse to amend or repeal legislation that the Strasbourg Court has denounced than for the Government to propose new legislation that it fears the Court will denounce.

Whether in relation to the Channel crisis or more generally, the Government should not use membership of the ECHR as an excuse for failing to propose legislation that in its view is necessary and justified. Rather, it should recognise that leaving the ECHR would restore Parliament’s freedom, on behalf of the British people, to decide what our laws should be. Crucially, this is not a party-political matter, even if it looks set to become one. Bringing the Strasbourg Court’s jurisdiction over the UK to an end would strengthen parliamentary democracy, regardless of which party forms a government and enjoys a majority.


Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.


Join the discussion


Join like minded readers that support our journalism by becoming a paid subscriber


To join the discussion in the comments, become a paid subscriber.

Join like minded readers that support our journalism, read unlimited articles and enjoy other subscriber-only benefits.

Subscribe
Subscribe
Notify of
guest

77 Comments
Most Voted
Newest Oldest
Inline Feedbacks
View all comments
N Satori
N Satori
11 months ago

Just when I was beginning to give up on UnHerd (today’s fare includes articles on Lana Del Rey, Football and Harry & Meghan) a really useful and informative piece is posted.
The crucial observation:

Rather than simply upholding the terms agreed by the member states, the Strasbourg Court has, since the Seventies, said that the ECHR is a “living instrument”

Sounds like a perfect powerbase for activist judges – you know, those high-brow fellows who would very much like to see their politics and moral values imposed without having to negotiate the inconvenient barrier of democracy.
I would very much like to know identity and background of those appointed to the ECHR. Is this information available to the public or is it shrouded in secrecy?

Charles Stanhope
Charles Stanhope
11 months ago
Reply to  N Satori

Leonard Hoffman being a good example*.

(*aka: “Leg over Lennie”.)

Peter Kwasi-Modo
Peter Kwasi-Modo
11 months ago
Reply to  N Satori

your crucial observation is indeed crucial. That phrase “living instrument” sounds like something from Bram Stoker.
J.M. Keynes said “When the facts change, I change my mind – what do you do, sir?”. Well, the facts have changed, but the only change at the ECHR court is that the judges have become big fans of open borders.

N Satori
N Satori
11 months ago

Well, J.M. Keynes comment harks back to a golden age of the thinking man. Contemporary pundits, influencers and political hacks might say: “When I see a chance to show that I’m a caring and virtuous fellow, I grab it with both hands, What do you guys do?”

Last edited 11 months ago by N Satori
John Riordan
John Riordan
11 months ago

“That phrase “living instrument” sounds like something from Bram Stoker.”

Actually it’s almost certainly drawn from the Americans, who are fighting a constant battle over whether things are Constitutional, the main problem being that one half of the argument would like to simply rewrite the Constitution to mean whatever they want it to mean. Hence the “living instrument” argument.

It’s not complete nonsense of course: the law has to keep pace with social and technological change. The problem comes when this allowance is abused in order to peddle political agendas.

Last edited 11 months ago by John Riordan
N Satori
N Satori
11 months ago

Well, J.M. Keynes comment harks back to a golden age of the thinking man. Contemporary pundits, influencers and political hacks might say: “When I see a chance to show that I’m a caring and virtuous fellow, I grab it with both hands, What do you guys do?”

Last edited 11 months ago by N Satori
John Riordan
John Riordan
11 months ago

“That phrase “living instrument” sounds like something from Bram Stoker.”

Actually it’s almost certainly drawn from the Americans, who are fighting a constant battle over whether things are Constitutional, the main problem being that one half of the argument would like to simply rewrite the Constitution to mean whatever they want it to mean. Hence the “living instrument” argument.

It’s not complete nonsense of course: the law has to keep pace with social and technological change. The problem comes when this allowance is abused in order to peddle political agendas.

Last edited 11 months ago by John Riordan
Jacqueline Burns
Jacqueline Burns
11 months ago
Reply to  N Satori

Of course, it should be noted that Israel also has a problem with unelected judges who have decided their function is to make decisions about which parliamentary laws are acceptable to them.

Charles Stanhope
Charles Stanhope
11 months ago
Reply to  N Satori

Leonard Hoffman being a good example*.

(*aka: “Leg over Lennie”.)

Peter Kwasi-Modo
Peter Kwasi-Modo
11 months ago
Reply to  N Satori

your crucial observation is indeed crucial. That phrase “living instrument” sounds like something from Bram Stoker.
J.M. Keynes said “When the facts change, I change my mind – what do you do, sir?”. Well, the facts have changed, but the only change at the ECHR court is that the judges have become big fans of open borders.

Jacqueline Burns
Jacqueline Burns
11 months ago
Reply to  N Satori

Of course, it should be noted that Israel also has a problem with unelected judges who have decided their function is to make decisions about which parliamentary laws are acceptable to them.

N Satori
N Satori
11 months ago

Just when I was beginning to give up on UnHerd (today’s fare includes articles on Lana Del Rey, Football and Harry & Meghan) a really useful and informative piece is posted.
The crucial observation:

Rather than simply upholding the terms agreed by the member states, the Strasbourg Court has, since the Seventies, said that the ECHR is a “living instrument”

Sounds like a perfect powerbase for activist judges – you know, those high-brow fellows who would very much like to see their politics and moral values imposed without having to negotiate the inconvenient barrier of democracy.
I would very much like to know identity and background of those appointed to the ECHR. Is this information available to the public or is it shrouded in secrecy?

Peter Kwasi-Modo
Peter Kwasi-Modo
11 months ago

Many thanks to Prof. Ekins for this piece. I know nothing about law, but here’s my three ha’pence worth. ECHR is based around a presumption that it is there to sort out rights abuses involving individuals, including irregular migrants. What such conventions do not take into account is that their decisions made about individuals affect aggregate behaviour. The number of irregular migrants increases as people in poor countries perceive that ECHR, etc., has rendered European governments impotent with regard to controlling migration. Selling the family’s goats to pay the people trafficers becomes a more attractive proposition when success is 97% guaranteed.
By contrast, sentencing policy in criminal law does, to some extent, take into account aggregate behaviour. A sentence can include an element of sending a message to disincentivise those contemplating committing a similar crime.

Steve Murray
Steve Murray
11 months ago

Based on your pontifications, “I know nothing about law…” seems a little false; the points you make seem well-argued, following on from studying matters in some depth.

Peter Kwasi-Modo
Peter Kwasi-Modo
11 months ago
Reply to  Steve Murray

I mean my understanding is that of a layman, not a jurist such as Prof. Ekins.. Specifically, what I do not understand is why lawyers phrase a Convention in such a way that, when circumstances change, those lawyers have created a hostage to fortune.

Last edited 11 months ago by Peter Kwasi-Modo
Alex Carnegie
Alex Carnegie
11 months ago

I am another non lawyer. The bit which puzzles me most is the attitude of many English lawyers who seem to react to any suggestion that we should revise our attitude or even abandon the ECHR as blasphemy. It seems to go beyond a proper respect for treaties. Is it that they see the ECHR as our equivalent of the US Constitution (as interpreted by the US Supreme Court)? and therefore a necessary guarantee of the rule of law? of the prevention of executive abuse? of the power of activist judges? or is it just the usual groupthink and insistence on orthodoxy which seems to be a growing part of the zeitgeist more generally? It seems odd given the smugness with which English lawyers used to proclaim the supposed superiority of the Common Law and other aspects of our legal system. Beats me. Anyone know the answer?

Simon Denis
Simon Denis
11 months ago
Reply to  Alex Carnegie

It’s all the things you mention, sustained by a wilfully imposed generational shift from the old common lawyers of yesteryear to the squeaky, shiny, sharp suited globalist cretins of today, loyal to each other as part of the western supra-national super-class and utterly disdainful of the various publics and populations which bred them. As such they are the enforcers of globalist orthodoxy, but (crucially) see themselves at the same time as the inheritors of the “liberal” tradition – hence all those appeals to supposed “figures of conscience” from the past. In short, they preen and posture in the borrowed glories of “resistance”, when in fact they are merely helping to destroy their homelands. It is a classic “trahison des clercs”.

Walter Marvell
Walter Marvell
11 months ago
Reply to  Simon Denis

Superb

Walter Marvell
Walter Marvell
11 months ago
Reply to  Simon Denis

Superb

Peter Kwasi-Modo
Peter Kwasi-Modo
11 months ago
Reply to  Alex Carnegie

Lawyers put their faith in Strasbourg, rather than Westminster. Lawyers regard Westminster as dodgy because politicians are elected, which means that those politicians have to appeal to the hoi-polloi. By contrast, Strasbourg judges are unelected, so they are more likely to reflect the attitudes of the elite.

Ethniciodo Rodenydo
Ethniciodo Rodenydo
11 months ago
Reply to  Alex Carnegie

That is because they are not really lawyers. The profession has gone to the dogs

Charles Stanhope
Charles Stanhope
11 months ago

Starting with the late Lord Denning, years ago, if not before!

Charles Stanhope
Charles Stanhope
11 months ago

Starting with the late Lord Denning, years ago, if not before!

Phil Rees
Phil Rees
11 months ago
Reply to  Alex Carnegie

I suggest it may stem from the woke left’s denigration of our history (and the legal profession is increasingly infected by woke left thinking despite protestations that they’re not). They will argue that without the ECHR we have only our own law and that offers no guarantee because history shows that UK has been a bad state doing bad things.

Frank McCusker
Frank McCusker
11 months ago
Reply to  Phil Rees

How many City lawyers do you know?

Ethniciodo Rodenydo
Ethniciodo Rodenydo
11 months ago
Reply to  Frank McCusker

I know a lot and he is right that the legal profession is increasingly infected by woke left thinking.
Moreover, when the profession was more conservative, the elder a conservative members of the profession may hve been bemused by the young left wing upstarts but they did not attempt to silence or discriminate against them. Know the woke brigade are in charge dissenting views age actively frowned upon and are effectively career limiting.
I used to think it was the test of a lawyer was to be able to see through and dispense with the BS and get to the crux of the matter. No longer so, it seems that the profession is just as prone to herd behaviour, emotional handwringing and virtue signalling as say teachers or uncivil non-servants

Andrew Green
Andrew Green
11 months ago

I am a lawyer, and proud to be one. One of those old-fashioned, common law types that believed that the most important attribute of any lawyer is integrity. They do still exist and not all are my age. But there is no doubt that legal rigour went out of the window with Lady Hale. The decision against the prorogation of Parliament, unanimous by Law Lords, most of whom were family lawyers, was intensely political, as many, including Lord Sumption, implied. It was a very bad decision, causing years of damage. Maybe Lord Reed will begin the slow process of putting it right. “Taking back control” is going to be much harder than we all thought. The Civil Service is not fit for purpose as Dominic Cummings stated; the Judiciary had become politicised but may be on the turn; the universities have almost entirely given up on the pursuit of knowledge.
The common Law was “bottom up”. That is why is was so successful. Strict, even harsh, but ameliorated by the case law development of “equity”. The fundamentals, contract and tort, have been adopted world-wide. Bottom=-up. We need to get back to that, and get rid of the dodgy imigration lawyers we have been reading about, the hypocritical human rights lawyers that are coining it in, thank you, on the back of others misery.
The “top-down” european approach to law has been an unmitigated disaster; we see that daily.

Simon Denis
Simon Denis
11 months ago

Quite so. Anyone who has any dealings with contemporary London society is well aware of its general tilt towards hard left wokery, from fear among the middle aged and from conviction among the glassy eyed young; and junior legal types are leading the charge. The phenomenon is hardly unknown – lawyers were among the first to be infected with Protestantism in the sixteenth century, working on the anti-clerical pretensions of the bar; the French Revolution was at first staffed and guided by a number of young attorneys, wholly at odds with the careworn and ponderous scruples of their elders, such as the great Malesherbes. And so on. Once again a would-be killer question – perhaps from a young and less than competent lawyer (?) – bites the dust.

Bernard Hill
Bernard Hill
11 months ago

…herd behaviour of the female hive mind proclivity.

Andrew Green
Andrew Green
11 months ago

I am a lawyer, and proud to be one. One of those old-fashioned, common law types that believed that the most important attribute of any lawyer is integrity. They do still exist and not all are my age. But there is no doubt that legal rigour went out of the window with Lady Hale. The decision against the prorogation of Parliament, unanimous by Law Lords, most of whom were family lawyers, was intensely political, as many, including Lord Sumption, implied. It was a very bad decision, causing years of damage. Maybe Lord Reed will begin the slow process of putting it right. “Taking back control” is going to be much harder than we all thought. The Civil Service is not fit for purpose as Dominic Cummings stated; the Judiciary had become politicised but may be on the turn; the universities have almost entirely given up on the pursuit of knowledge.
The common Law was “bottom up”. That is why is was so successful. Strict, even harsh, but ameliorated by the case law development of “equity”. The fundamentals, contract and tort, have been adopted world-wide. Bottom=-up. We need to get back to that, and get rid of the dodgy imigration lawyers we have been reading about, the hypocritical human rights lawyers that are coining it in, thank you, on the back of others misery.
The “top-down” european approach to law has been an unmitigated disaster; we see that daily.

Simon Denis
Simon Denis
11 months ago

Quite so. Anyone who has any dealings with contemporary London society is well aware of its general tilt towards hard left wokery, from fear among the middle aged and from conviction among the glassy eyed young; and junior legal types are leading the charge. The phenomenon is hardly unknown – lawyers were among the first to be infected with Protestantism in the sixteenth century, working on the anti-clerical pretensions of the bar; the French Revolution was at first staffed and guided by a number of young attorneys, wholly at odds with the careworn and ponderous scruples of their elders, such as the great Malesherbes. And so on. Once again a would-be killer question – perhaps from a young and less than competent lawyer (?) – bites the dust.

Bernard Hill
Bernard Hill
11 months ago

…herd behaviour of the female hive mind proclivity.

Ethniciodo Rodenydo
Ethniciodo Rodenydo
11 months ago
Reply to  Frank McCusker

I know a lot and he is right that the legal profession is increasingly infected by woke left thinking.
Moreover, when the profession was more conservative, the elder a conservative members of the profession may hve been bemused by the young left wing upstarts but they did not attempt to silence or discriminate against them. Know the woke brigade are in charge dissenting views age actively frowned upon and are effectively career limiting.
I used to think it was the test of a lawyer was to be able to see through and dispense with the BS and get to the crux of the matter. No longer so, it seems that the profession is just as prone to herd behaviour, emotional handwringing and virtue signalling as say teachers or uncivil non-servants

Frank McCusker
Frank McCusker
11 months ago
Reply to  Phil Rees

How many City lawyers do you know?

Charles Stanhope
Charles Stanhope
11 months ago
Reply to  Alex Carnegie

You’ve answered your own question! eg:
“the usual groupthink and insistence on orthodoxy”.

Simon Denis
Simon Denis
11 months ago
Reply to  Alex Carnegie

It’s all the things you mention, sustained by a wilfully imposed generational shift from the old common lawyers of yesteryear to the squeaky, shiny, sharp suited globalist cretins of today, loyal to each other as part of the western supra-national super-class and utterly disdainful of the various publics and populations which bred them. As such they are the enforcers of globalist orthodoxy, but (crucially) see themselves at the same time as the inheritors of the “liberal” tradition – hence all those appeals to supposed “figures of conscience” from the past. In short, they preen and posture in the borrowed glories of “resistance”, when in fact they are merely helping to destroy their homelands. It is a classic “trahison des clercs”.

Peter Kwasi-Modo
Peter Kwasi-Modo
11 months ago
Reply to  Alex Carnegie

Lawyers put their faith in Strasbourg, rather than Westminster. Lawyers regard Westminster as dodgy because politicians are elected, which means that those politicians have to appeal to the hoi-polloi. By contrast, Strasbourg judges are unelected, so they are more likely to reflect the attitudes of the elite.

Ethniciodo Rodenydo
Ethniciodo Rodenydo
11 months ago
Reply to  Alex Carnegie

That is because they are not really lawyers. The profession has gone to the dogs

Phil Rees
Phil Rees
11 months ago
Reply to  Alex Carnegie

I suggest it may stem from the woke left’s denigration of our history (and the legal profession is increasingly infected by woke left thinking despite protestations that they’re not). They will argue that without the ECHR we have only our own law and that offers no guarantee because history shows that UK has been a bad state doing bad things.

Charles Stanhope
Charles Stanhope
11 months ago
Reply to  Alex Carnegie

You’ve answered your own question! eg:
“the usual groupthink and insistence on orthodoxy”.

Harry Child
Harry Child
11 months ago

I would have thought the answer is simple. There is money in it for the lawyers.

Alex Carnegie
Alex Carnegie
11 months ago

I am another non lawyer. The bit which puzzles me most is the attitude of many English lawyers who seem to react to any suggestion that we should revise our attitude or even abandon the ECHR as blasphemy. It seems to go beyond a proper respect for treaties. Is it that they see the ECHR as our equivalent of the US Constitution (as interpreted by the US Supreme Court)? and therefore a necessary guarantee of the rule of law? of the prevention of executive abuse? of the power of activist judges? or is it just the usual groupthink and insistence on orthodoxy which seems to be a growing part of the zeitgeist more generally? It seems odd given the smugness with which English lawyers used to proclaim the supposed superiority of the Common Law and other aspects of our legal system. Beats me. Anyone know the answer?

Harry Child
Harry Child
11 months ago

I would have thought the answer is simple. There is money in it for the lawyers.

Peter Kwasi-Modo
Peter Kwasi-Modo
11 months ago
Reply to  Steve Murray

I mean my understanding is that of a layman, not a jurist such as Prof. Ekins.. Specifically, what I do not understand is why lawyers phrase a Convention in such a way that, when circumstances change, those lawyers have created a hostage to fortune.

Last edited 11 months ago by Peter Kwasi-Modo
Ethniciodo Rodenydo
Ethniciodo Rodenydo
11 months ago

It is illegal immigrants not irregular migrants

John Riordan
John Riordan
11 months ago

“What such conventions do not take into account is that their decisions made about individuals affect aggregate behaviour.”

Well they do, actually. The reason the wider implications are often ignored is simply due to the political ambitions of the people who are supposed to be making the decisions in an apolitical manner.

Steve Murray
Steve Murray
11 months ago

Based on your pontifications, “I know nothing about law…” seems a little false; the points you make seem well-argued, following on from studying matters in some depth.

Ethniciodo Rodenydo
Ethniciodo Rodenydo
11 months ago

It is illegal immigrants not irregular migrants

John Riordan
John Riordan
11 months ago

“What such conventions do not take into account is that their decisions made about individuals affect aggregate behaviour.”

Well they do, actually. The reason the wider implications are often ignored is simply due to the political ambitions of the people who are supposed to be making the decisions in an apolitical manner.

Peter Kwasi-Modo
Peter Kwasi-Modo
11 months ago

Many thanks to Prof. Ekins for this piece. I know nothing about law, but here’s my three ha’pence worth. ECHR is based around a presumption that it is there to sort out rights abuses involving individuals, including irregular migrants. What such conventions do not take into account is that their decisions made about individuals affect aggregate behaviour. The number of irregular migrants increases as people in poor countries perceive that ECHR, etc., has rendered European governments impotent with regard to controlling migration. Selling the family’s goats to pay the people trafficers becomes a more attractive proposition when success is 97% guaranteed.
By contrast, sentencing policy in criminal law does, to some extent, take into account aggregate behaviour. A sentence can include an element of sending a message to disincentivise those contemplating committing a similar crime.

Walter Marvell
Walter Marvell
11 months ago

Are there not alternative ways to tackle this problem from the ground up? This proposal bears some risk because it has been baked into many treaties like Good Friday. Why not lead an international effort to update the 1951 Refugee Convention which IS the law undermining border control for us EU US all. And we should deploy the common enterprise laws to expose the criminality of the small boaters. All have sought out and paid thousands into the pockets of criminal gangsters who instruct them to burn their passports and ID. A second flagrant criminal act. This is joint or common enterprise. There are hundreds of black kids in prison here on huge sentences who were simply part of a gang out. Even if they were no where near an act of violence or complicit in it they were deemed culpable. Compare their actions to those of the illegal border breakers. Expose the absurd lie of them fleeing war in France and being victims. If I waltz up to a drug dealer, hand over 15K I would not expect to be offered a hotel room and lauded as a new virtuous citizen. Its common enterprise. Start there. No documents no entry.

Simon Denis
Simon Denis
11 months ago
Reply to  Walter Marvell

Good ideas in principle but let us consider two salient problems. First, the government machines on which you would have to rely for such an effort would frustrate it at every turn – being staffed by precisely the sort of persons who approve of current chaos. Second, it would take far too long and we have little time. Far better – should a government of real wisdom and courage ever be elected again – to rip up any treaties binding us to such conventions. Much as I regret the vandalism of the English Reformation, you will recall that the Tudor regime spent some seven years getting nowhere with the papacy over the royal annulment, and only a few months on that same “great matter” once the papacy’s jurisdiction had been flouted. The same might well apply to our globalist establishment and civil service. A sovereign parliament must quite simply tug the accumulated laws and conventions which prevent democratic action from under their feet – and do so very sharply and ruthlessly, too.

Steve Murray
Steve Murray
11 months ago
Reply to  Simon Denis

The comparison with the Tudor exit from the strictures of Rome (Rexit?) is apt, and the first time i’ve seen it used. Bring on the Dissolution of the Chambers!

Walter Marvell
Walter Marvell
11 months ago
Reply to  Simon Denis

100%. The Progressives inhabit every nook and cranny of the New Technocratic Order they constructed and yes use the weaponized judiciary and hysterical mendacious state media to distort the plain truth and to undermine any effort at Border Control. I am simply arguing that we need not even engage with the thorny messy multilateral and Euro Human Rights machines and attendant Woke Hysteria. Common or Joint Enterprise is a criminal law that is directly applicable to the illegal immigration of the small boaters. They fund gangsters. 5k a pop – into the hands of gangsters.They then do their bidding in destroying vital identification to subvert our processing. That makes the crossings a bona fide joint illegal enterprise. Anyone committing this criminal act has zero right to even make an asylum claim and tap our welfare system. They should be imprisoned pending deportation, not welcomed like heroes. Encourage only legal migration claims with ID and without the assistance of brutal trafficking mafiosi from special centres in France. Use this JE law to expose the naked cynicism of our open border fanatics who have waved in 100,000 economic migrants to Treasure Island. How the French laugh at us. Perhaps we then can focus with generosity and passion on the needs of the minority in genuine need of asylum from HK or wherever else in the world.

Frank McCusker
Frank McCusker
11 months ago
Reply to  Walter Marvell

“New Technocratic Order they constructed”
You’re as mad as those who talk about “the Patriarchy”
All you fanatics invent shadowy structures to justify your frothy railing

Walter Marvell
Walter Marvell
11 months ago
Reply to  Frank McCusker

Oh deary me Frank. Technocracy is a shorthand for the decades old day basic British adminstrative system of NMIs (non majoritraian institution). The creation and proliferation of Quangos and hundreds of other Regulatory institutions which are governed by unelected permanent officials or ‘technocrats’ separate from Ministerial or Executive control. When you have ceased frothing at the ‘conspiracy’ of such a claim, try looking up the not so shadowy or invisible things like…. the Bank of England which governs interest rates, the CCC which governs Net Zero budgets and targets…Ofcom? Natural England? Public Health England? This system was intended to modernise the UK and stop the political short termism of Five Year Parliaments. But it has not worked. Ministers increasingly lack the direct levers of control (see lockdown). And the ever increasing powers of this permanent unelected but all too visible Blob/Quangocracy/Technocracy is a root cause both of Executive impotence and the mood of popular despair at the aggressive enforcement of regulations and policies – like mass immigration and Net Zero – which lack any democratic mandate. Read up before you belch out trite insults. Conspiracy indeed.

Simon Denis
Simon Denis
11 months ago
Reply to  Walter Marvell

Well said. His insults are trite indeed – empty headed regurgitations of reach-me-down excuses and deflections – utterly pathetic. Do such characters believe a word of what they say – or write?

Dominic A
Dominic A
11 months ago
Reply to  Walter Marvell

Surely NMIs are inevitable and no government system has ever existed without them?

Walter Marvell
Walter Marvell
11 months ago
Reply to  Dominic A

As noted, in my very un-conspiratorial earlier post, I do understand the principle; the idea of technocratic but non political expertise operating outside of a centralised Executive makes theoretical sense. But three things have gone terribly wrong. First – their relentless expansion. This is new. It was never like this under Thatcher. A vast Blob has emerged – and they are permanent and unelected remember. If they were good – fine. But problem two is that they are uniformly dreadful and having a shattering impact on our economy vitality. Look at the Fool Bailey – given powers over interest rates to control inflation – and who told us a two year lockdown would have zero inflationary impact. He is still there – killing enterprise the Rishi Government. Then Look at the way the regulators of water and energy have so damaged and warped those markets as do the likes of Super Nimby Natural England in the similarly screwed housing market. The final problem is that this ‘constititional modernisation’ was enacted for non domestic reasons too. Blair did it to make the post Maastricht UK a fully compliant EU state. The dismantling of Executive centralised power via devolution, NMIs and the supremacy of EU laws were all designed to weaken the UK as an independent nation state. Not a problem 1992-2016. But it is 2023. The shattering impotence of a supposed Tory supposed Brexit Government seeking to rebuild national authority and resilience (which has so bewildered) is directly attributable to this problem; a vast unelected overempowered technocracy (all still adhering to the progressive worldview) plus a hostile Civil Service and judiciary has resulted in a feeble impotent Executive. Their hands are not directly on the levers of power in what is still a progressive State with EU laws and practices (notably the precautionary principle, the guiding light of these NMIs). Ergo Houston – we have a problem.

Dominic A
Dominic A
11 months ago
Reply to  Walter Marvell

Perhaps so. The civil service was bigger during the Thatcher years – the times of ‘Yes Prime/Minister – so maybe it’s a case of old wine in new bottles.

Walter Marvell
Walter Marvell
11 months ago
Reply to  Dominic A

Indeed! But tpu are forgetting a prime new driver of change. Blairism drove the huge expansion of a new graduate class; a white collar and highly feminised workforce via its 50% To Uni social engineering project. This surplus grad army has flowed not into wealth creation but into Labours comfort zone of regulation and admin – into new NMIs and new public sector Blob jobs created in a Brownite neo Keynsian binge. Grumpy Gammon Sir Humphreys have long since been blitzed by the Perma Progressive Elite, the Weeping Raab Assassins and ever so neutral cold eyed Sue Greys.

Walter Marvell
Walter Marvell
11 months ago
Reply to  Dominic A

Indeed! But tpu are forgetting a prime new driver of change. Blairism drove the huge expansion of a new graduate class; a white collar and highly feminised workforce via its 50% To Uni social engineering project. This surplus grad army has flowed not into wealth creation but into Labours comfort zone of regulation and admin – into new NMIs and new public sector Blob jobs created in a Brownite neo Keynsian binge. Grumpy Gammon Sir Humphreys have long since been blitzed by the Perma Progressive Elite, the Weeping Raab Assassins and ever so neutral cold eyed Sue Greys.

Dominic A
Dominic A
11 months ago
Reply to  Walter Marvell

Perhaps so. The civil service was bigger during the Thatcher years – the times of ‘Yes Prime/Minister – so maybe it’s a case of old wine in new bottles.

Walter Marvell
Walter Marvell
11 months ago
Reply to  Dominic A

As noted, in my very un-conspiratorial earlier post, I do understand the principle; the idea of technocratic but non political expertise operating outside of a centralised Executive makes theoretical sense. But three things have gone terribly wrong. First – their relentless expansion. This is new. It was never like this under Thatcher. A vast Blob has emerged – and they are permanent and unelected remember. If they were good – fine. But problem two is that they are uniformly dreadful and having a shattering impact on our economy vitality. Look at the Fool Bailey – given powers over interest rates to control inflation – and who told us a two year lockdown would have zero inflationary impact. He is still there – killing enterprise the Rishi Government. Then Look at the way the regulators of water and energy have so damaged and warped those markets as do the likes of Super Nimby Natural England in the similarly screwed housing market. The final problem is that this ‘constititional modernisation’ was enacted for non domestic reasons too. Blair did it to make the post Maastricht UK a fully compliant EU state. The dismantling of Executive centralised power via devolution, NMIs and the supremacy of EU laws were all designed to weaken the UK as an independent nation state. Not a problem 1992-2016. But it is 2023. The shattering impotence of a supposed Tory supposed Brexit Government seeking to rebuild national authority and resilience (which has so bewildered) is directly attributable to this problem; a vast unelected overempowered technocracy (all still adhering to the progressive worldview) plus a hostile Civil Service and judiciary has resulted in a feeble impotent Executive. Their hands are not directly on the levers of power in what is still a progressive State with EU laws and practices (notably the precautionary principle, the guiding light of these NMIs). Ergo Houston – we have a problem.

Simon Denis
Simon Denis
11 months ago
Reply to  Walter Marvell

Well said. His insults are trite indeed – empty headed regurgitations of reach-me-down excuses and deflections – utterly pathetic. Do such characters believe a word of what they say – or write?

Dominic A
Dominic A
11 months ago
Reply to  Walter Marvell

Surely NMIs are inevitable and no government system has ever existed without them?

Walter Marvell
Walter Marvell
11 months ago
Reply to  Frank McCusker

Oh deary me Frank. Technocracy is a shorthand for the decades old day basic British adminstrative system of NMIs (non majoritraian institution). The creation and proliferation of Quangos and hundreds of other Regulatory institutions which are governed by unelected permanent officials or ‘technocrats’ separate from Ministerial or Executive control. When you have ceased frothing at the ‘conspiracy’ of such a claim, try looking up the not so shadowy or invisible things like…. the Bank of England which governs interest rates, the CCC which governs Net Zero budgets and targets…Ofcom? Natural England? Public Health England? This system was intended to modernise the UK and stop the political short termism of Five Year Parliaments. But it has not worked. Ministers increasingly lack the direct levers of control (see lockdown). And the ever increasing powers of this permanent unelected but all too visible Blob/Quangocracy/Technocracy is a root cause both of Executive impotence and the mood of popular despair at the aggressive enforcement of regulations and policies – like mass immigration and Net Zero – which lack any democratic mandate. Read up before you belch out trite insults. Conspiracy indeed.

Frank McCusker
Frank McCusker
11 months ago
Reply to  Walter Marvell

“New Technocratic Order they constructed”
You’re as mad as those who talk about “the Patriarchy”
All you fanatics invent shadowy structures to justify your frothy railing

Steve Murray
Steve Murray
11 months ago
Reply to  Simon Denis

The comparison with the Tudor exit from the strictures of Rome (Rexit?) is apt, and the first time i’ve seen it used. Bring on the Dissolution of the Chambers!

Walter Marvell
Walter Marvell
11 months ago
Reply to  Simon Denis

100%. The Progressives inhabit every nook and cranny of the New Technocratic Order they constructed and yes use the weaponized judiciary and hysterical mendacious state media to distort the plain truth and to undermine any effort at Border Control. I am simply arguing that we need not even engage with the thorny messy multilateral and Euro Human Rights machines and attendant Woke Hysteria. Common or Joint Enterprise is a criminal law that is directly applicable to the illegal immigration of the small boaters. They fund gangsters. 5k a pop – into the hands of gangsters.They then do their bidding in destroying vital identification to subvert our processing. That makes the crossings a bona fide joint illegal enterprise. Anyone committing this criminal act has zero right to even make an asylum claim and tap our welfare system. They should be imprisoned pending deportation, not welcomed like heroes. Encourage only legal migration claims with ID and without the assistance of brutal trafficking mafiosi from special centres in France. Use this JE law to expose the naked cynicism of our open border fanatics who have waved in 100,000 economic migrants to Treasure Island. How the French laugh at us. Perhaps we then can focus with generosity and passion on the needs of the minority in genuine need of asylum from HK or wherever else in the world.

Simon Denis
Simon Denis
11 months ago
Reply to  Walter Marvell

Good ideas in principle but let us consider two salient problems. First, the government machines on which you would have to rely for such an effort would frustrate it at every turn – being staffed by precisely the sort of persons who approve of current chaos. Second, it would take far too long and we have little time. Far better – should a government of real wisdom and courage ever be elected again – to rip up any treaties binding us to such conventions. Much as I regret the vandalism of the English Reformation, you will recall that the Tudor regime spent some seven years getting nowhere with the papacy over the royal annulment, and only a few months on that same “great matter” once the papacy’s jurisdiction had been flouted. The same might well apply to our globalist establishment and civil service. A sovereign parliament must quite simply tug the accumulated laws and conventions which prevent democratic action from under their feet – and do so very sharply and ruthlessly, too.

Walter Marvell
Walter Marvell
11 months ago

Are there not alternative ways to tackle this problem from the ground up? This proposal bears some risk because it has been baked into many treaties like Good Friday. Why not lead an international effort to update the 1951 Refugee Convention which IS the law undermining border control for us EU US all. And we should deploy the common enterprise laws to expose the criminality of the small boaters. All have sought out and paid thousands into the pockets of criminal gangsters who instruct them to burn their passports and ID. A second flagrant criminal act. This is joint or common enterprise. There are hundreds of black kids in prison here on huge sentences who were simply part of a gang out. Even if they were no where near an act of violence or complicit in it they were deemed culpable. Compare their actions to those of the illegal border breakers. Expose the absurd lie of them fleeing war in France and being victims. If I waltz up to a drug dealer, hand over 15K I would not expect to be offered a hotel room and lauded as a new virtuous citizen. Its common enterprise. Start there. No documents no entry.

Ian Barton
Ian Barton
11 months ago

The main problem going forward is that the EHCR continues to use case law to increase its alignment with evolving EU policy.
There is a logical purity that suggests that the U.K. leaving the EU clearly implies a vote to leave or ignore the ECHR rulings where they are inappropriate to the 21st century or U.K. democracy.
I suspect that the U.K. government is currently in the process of “daring” our own Supreme Court and Strasbourg to get in the way again – and if they block Rwanda – will offer Strasboug an ultimatum to “reinterpret” (via the next Conservative manifesto)
Sadly the process of ignoring Strasbourg rulings can be ruled illegal by our own (captured ?) Supreme Court.
The next 6 months are the “popcorn moment” on this key subject.

Last edited 11 months ago by Ian Barton
Ian Barton
Ian Barton
11 months ago

The main problem going forward is that the EHCR continues to use case law to increase its alignment with evolving EU policy.
There is a logical purity that suggests that the U.K. leaving the EU clearly implies a vote to leave or ignore the ECHR rulings where they are inappropriate to the 21st century or U.K. democracy.
I suspect that the U.K. government is currently in the process of “daring” our own Supreme Court and Strasbourg to get in the way again – and if they block Rwanda – will offer Strasboug an ultimatum to “reinterpret” (via the next Conservative manifesto)
Sadly the process of ignoring Strasbourg rulings can be ruled illegal by our own (captured ?) Supreme Court.
The next 6 months are the “popcorn moment” on this key subject.

Last edited 11 months ago by Ian Barton
Dumetrius
Dumetrius
11 months ago

Isn’t the whole ‘putting ourselves in the company of Russia and Belarus’ a bit fatuous as an arguing point ?

How is ‘entering’ that ‘status’ – a status derived purely by not being in something – operationalised in a way to make it actually mean anything?

It’s just a nothing.

Last edited 11 months ago by Dumetrius
Simon Denis
Simon Denis
11 months ago
Reply to  Dumetrius

Quite so. It’s no more than a debating point – perhaps not even so much. If a wicked man finds the way to get out of a burning building, are we going to object to taking the same exit on account of his morals?

Ethniciodo Rodenydo
Ethniciodo Rodenydo
11 months ago
Reply to  Dumetrius

Hitler was famously a vegetarian

Ethniciodo Rodenydo
Ethniciodo Rodenydo
11 months ago

To the intellectual that voted me down, why?

Dominic A
Dominic A
11 months ago

Not me – but I think that the usual reason for downvoting a sound comment without making counter argument is ’emotional reasoning’ – i.e. a vegetarian felt hurt upon reading the comment, and projected their faulty reasoning (‘he’s saying vegetarians are bad’) on you.

Dominic A
Dominic A
11 months ago
Reply to  Dominic A

…and there it is again.

james goater
james goater
11 months ago
Reply to  Dominic A

Fortunately, as of now, you’ve both gained enough up votes to cancel out the naysaying reds — as it should be!

james goater
james goater
11 months ago
Reply to  Dominic A

Fortunately, as of now, you’ve both gained enough up votes to cancel out the naysaying reds — as it should be!

Dominic A
Dominic A
11 months ago
Reply to  Dominic A

…and there it is again.

Dominic A
Dominic A
11 months ago

Not me – but I think that the usual reason for downvoting a sound comment without making counter argument is ’emotional reasoning’ – i.e. a vegetarian felt hurt upon reading the comment, and projected their faulty reasoning (‘he’s saying vegetarians are bad’) on you.

Ethniciodo Rodenydo
Ethniciodo Rodenydo
11 months ago

To the intellectual that voted me down, why?

Simon Denis
Simon Denis
11 months ago
Reply to  Dumetrius

Quite so. It’s no more than a debating point – perhaps not even so much. If a wicked man finds the way to get out of a burning building, are we going to object to taking the same exit on account of his morals?

Ethniciodo Rodenydo
Ethniciodo Rodenydo
11 months ago
Reply to  Dumetrius

Hitler was famously a vegetarian

Dumetrius
Dumetrius
11 months ago

Isn’t the whole ‘putting ourselves in the company of Russia and Belarus’ a bit fatuous as an arguing point ?

How is ‘entering’ that ‘status’ – a status derived purely by not being in something – operationalised in a way to make it actually mean anything?

It’s just a nothing.

Last edited 11 months ago by Dumetrius
Dougie Undersub
Dougie Undersub
11 months ago

It’s bad enough having our own Supreme Court making up the law as it goes along, without having the insufferable ECHR joining in.

Dougie Undersub
Dougie Undersub
11 months ago

It’s bad enough having our own Supreme Court making up the law as it goes along, without having the insufferable ECHR joining in.

George Venning
George Venning
11 months ago

Of course you can make a case for withdrawing from any piece of international law on the basis that it limits and curtails national and parliamentary sovereignty. And you can certainly make a case that, where the international body or treaty is an evolving one, the curtailment of sovereignty is more problematic because its impact was unknown at the time it was entered into. To put it briefly, duh.
.
You could, of course, make precisely the same case for withdrawal from NATO – which entails obligations on the UK whose nature has changed dramatically and which the UK does not control. Or the World Bank, or the WTO – all of these are living and evolving institutions
.
For all the legal flummery here, the point is not that all infringments of sovereignty and misalignments with the will of Parliament should be rejected. It is that we are entitled to consider how well they serve us. Again, duh.
.
No-one is really suggesting leaving the ECHR because of it’s legal doctrines. No-one seems remotely bothered about the role of the ECHR in continuing to guarantee privacy, freedom from torture or the right to a fair trial. The ECHR did not create those freedoms but it is how we currently secure them and it does OK at it because it is (generally) aligned with us.
.
Let’s face it, the reason a certain sort of politician is constantly enraged at the ECHR is because it insists that we treat asylum seekers with a bare minimum of decency. Treating those who are fleeing war and persecution decently does not, in itself, enrage anyone I know. We’re still busily erecting (not very good) statues to the Kindertransport.
.
The answer is that Tory politicians like to cover up the uncomfortable and upopular fact that the economy is deeply dependent upon legal immigration by conflating that immigration with asylum. Then, such politicians like to claim that the asylum seekers would stop coming if only the ECHR would stop infringing British sovereignty by allowing the UK government to create a sufficiently hostile environment. It’s cobblers
.
Prof Ekins is all mild manners and sensible about this. But the fact is that, like the EU itself, the ECHR is merely a scapegoat which Conservative governments like to use as a distraction from their own abject failures. Let’s remember that, having left the EU in order to end the free movement of people from within the EU, they simply introduced greater freedom of movement from elsewhere. To distract us from that, the Government is as performatively nasty as it can be to asylum seekers (sending a trivial number of people to Rwanda, painting over murals, acquiring expensive prison hulks) and blaming the ECHR for thwarting it. If we left the ECHR, some other scapegoat would immediately be created to replace it.
.
Exiting the ECHR won’t change a single thing because the ECHR isn’t actually the problem. Any more than the EU was.
.
If you want to fix the country through constitutional reform, let’s start with the basics eh? Starting with electoral reform. Maybe replacing the House of Lords with something a little less startlingly corrupt.

Steve Murray
Steve Murray
11 months ago
Reply to  George Venning

Where on earth did you learn to start putting ” . ” between paragraphs? It just takes up unnecessary space when scrolling. Please desist.

Ian Barton
Ian Barton
11 months ago
Reply to  Steve Murray

Mea

Culpa

Charles Stanhope
Charles Stanhope
11 months ago
Reply to  Ian Barton

Two sugars or one?

Charles Stanhope
Charles Stanhope
11 months ago
Reply to  Ian Barton

Two sugars or one?

George Venning
George Venning
11 months ago
Reply to  Steve Murray

Because, otherwise, the site collapses everything into a single block of text, which makes a long post harder to read. Or, for your convenience. I apologise if the wear and tear on your scrolling finger is intolerable.

Ian Barton
Ian Barton
11 months ago
Reply to  Steve Murray

Mea

Culpa

George Venning
George Venning
11 months ago
Reply to  Steve Murray

Because, otherwise, the site collapses everything into a single block of text, which makes a long post harder to read. Or, for your convenience. I apologise if the wear and tear on your scrolling finger is intolerable.

Aidan Anabetting
Aidan Anabetting
11 months ago
Reply to  George Venning

Yes, you can sense the desperation to get the debate back to nationalism rather than ever admit or address the underlying structural failings. From today’s Telegraph: ““The UK remains the only G7 country in which the main quarterly measure of GDP has not recovered to its pre-Covid peak yet.”

George Venning
George Venning
11 months ago

Well quite

George Venning
George Venning
11 months ago

Well quite

rupert carnegie
rupert carnegie
11 months ago
Reply to  George Venning

You make some good points. I agree there is a lot of muddled thinking and hypocrisy in the immigration debate. 

Your observation that we have an economy that is structurally addicted to immigration is undoubtedly correct currently e.g. if the Treasury refuses to fund sufficient training of doctors in the U.K. then the deficit has to be made up with individuals trained abroad (often at the expense of third world governments). In the long run, however, this is a matter of choice.

It is also true that the way BREXIT was sold involved an element of “bait and switch”. Many of those voting leave wanted immigration reduced (for a variety of acceptable and less admirable reasons) while many of the financial backers dreamt of a “Singapore on the Thames” and were indifferent to the issue. BREXIT Britain has ended up closer to the second less populist version.

That said, there are reasons to think that a more aggressively managed approach to immigration is almost inevitable. I fear the toughness will not be just “performative”. 

1/ No liberal democracy can long survive without lurching into populism if a third of the population is experiencing stagnating or declining standards of living. There are other factors – globalisation, automation, misguided deregulatory and welfare reforms, etc – but the imbalance at the less skilled end of the labour market before BREXIT was partly due to high immigration of unskilled labour. If you do not want more politicians like Trump, Boris and Farage – or worse – then it is essential that the steady increase of real incomes for ordinary people that characterised the British economy in the period from the 1850s to 2008 resumes. Mild unskilled labour shortages will provide this; excess unskilled immigration will undercut it.

2/ The response to the above will continue to involve a points system. Skilled immigrants are inevitably more welcome than the unskilled. As Australia demonstrates, however, the dark side of this approach is an upsettingly robust approach to those with few points or who seek to arrive illegally or undocumented.

3/ The challenges are only going to get more extreme. Arguably, British society can cope with the current level of economic and illegal migrants. The number coming by boat is a statistical irrelevance. But the population of Africa alone has grown from 230 m in 1950 to 1.3 bn today and is projected to rise to 2.5 bn by 2050. The local economies are not growing fast enough and global warming is expected to hit the Sahel and West Africa especially hard. The number of would-be economic migrants from there is likely to expand significantly. The same logic applies in the Middle East and Central Asia.

Since the 1960s one litmus test of whether an individual held acceptably liberal views has been the immigration issue. My guess is that over the next ten years this will change and that, given the above, a far harder nosed approach will become the norm. Britain’s more altruistic overseas impulses will perhaps become more focussed on helping people where they are and not where they would like to be. If the ECHR is seen as an obstacle, I suspect that it will – one way or another – be either ignored or swept aside. I also think that identity cards are probable on similar logic. Nor is the UK alone. The same issues challenge many other European countries from Sweden to Italy.

In the long run, I fear the fate of the UK’s relationship with the ECHR will be seen as a mere implementation issue arising from a debate about immigration policy. Unfortunately, the ECHR is about far more.

Last edited 11 months ago by rupert carnegie
George Venning
George Venning
11 months ago

I think we agree no?
The point is this, no-one would be talking about leaving the ECHR simply because it is a constitutional oddity and a constraint on sovereignty. It is both of those things but at an entirely manageable level.
They are talking about it because it stops the Government from doing something it claims to want to do. And thus, attacking the ECHR provides a distraction from the obvious truth that sending 500 asylum seekers to Rwanda won’t have the square root of eff all effect on aggregate levels of migration – much less end our low-wage economic model.
If the public conversation spent half as much time talking about stagnating wage levels as it does about this stupid barge, the conservatives would be long gone.

rupert carnegie
rupert carnegie
11 months ago
Reply to  George Venning

About many things but perhaps not about which issue deserves priority. I agree that 500 is a rounding error and even the obsession with the 40,000 arriving by boat is either dumb or – as you suggest – a diversionary tactic.

At the risk of putting words in your mouth, I think you are framing the issue mainly around the defence of rights and see the ECHR as their best (albeit imperfect) guarantor – and treat stagnating incomes for the poorest third as a separate, secondary or unrelated issue.

My thought process, on the other hand, starts with the stagnating and declining incomes, which I regard as a problem that must be dealt with or we will end up with someone even worse than Trump as PM. From there I am led inexorably – if somewhat queasily – to a genuinely (and not merely performatively) robust immigration policy amongst other things.

Different starting points; different conclusions.

Last edited 11 months ago by rupert carnegie
Rocky Martiano
Rocky Martiano
11 months ago

We have already had someone worse than Trump as PM.

George Venning
George Venning
11 months ago

No I’m saying that stagnating incomes are precisely the problem. But I’m saying that the current economic model requires income to be held down and significant migration is part of the mechanism that achieves this.

Our stingy benefits system plays at least as important a role in holding down wage demands as migration as a whole (forget asylum). And yet all we ever talk about is small boats.

As to the ECHR, it’s fine. It’s not perfect, nor is any other system. It’s simply a distraction

Alex Carnegie
Alex Carnegie
11 months ago
Reply to  George Venning

Ah. Maybe we do agree basically after all! Migration over the last ten years has been such an oscillation between too much and too little that is easy to confuse oneself when debating the issue.

The current situation, where the government is simultaneously trying to boost immigration from places like Mexico while hoping to confine those from Afghanistan in barges, suggests the government is not only hypocritical but also rather muddled. Perhaps it is a messy compromise between an inflation hating Treasury and the Suella camp.

In the long run, however, I still think there will be “too much” migration and political pressure will lead to a robustly enforced Australian style approach. If this forecast is right, the ECHR risks being collateral damage.

But thanks for your comments. UnHerd publishes articles expressing a good range of opinion but the comments section appears currently to be drifting into being yet another echo chamber. The more (reasonable) dissent the better.

George Venning
George Venning
11 months ago
Reply to  Alex Carnegie

Thank you. Like you, I come here to engage rather than scream into the void.
My point is. There is a problem in terms of incomes and living standards.
There are a whole host of things you can do about it, some of which will be effective, some less so.
We can disagree about the relative merits of this or that thing. And I hope that either of us might forgive a government that did some things we disagreed with, if it seemed to be making a good faith effort to address the big problem. And we would assess that by looking at how many other things they are doing to drive up wages and living standards.
But what I actually see is a government that is not only not working to raise wages, but actively seeking to suppress them (allegedly out of concern over inflation). This Government explicitly opposes even trying to address the real issue that you and I agree about.
In that context, it is hard to see the Government’s ineffective and deliberately cruel treatment of asylum seekers (and the ECHR) as anything other than a cynical distraction from the fact that they don’t even aspire to improve the living standards of British people.
Whether that is the act of an avowedly racist government or merely one that panders to those who prefer ineffectual racism to actual solutions is, to me, a distinction without difference.

George Venning
George Venning
11 months ago
Reply to  Alex Carnegie

Thank you. Like you, I come here to engage rather than scream into the void.
My point is. There is a problem in terms of incomes and living standards.
There are a whole host of things you can do about it, some of which will be effective, some less so.
We can disagree about the relative merits of this or that thing. And I hope that either of us might forgive a government that did some things we disagreed with, if it seemed to be making a good faith effort to address the big problem. And we would assess that by looking at how many other things they are doing to drive up wages and living standards.
But what I actually see is a government that is not only not working to raise wages, but actively seeking to suppress them (allegedly out of concern over inflation). This Government explicitly opposes even trying to address the real issue that you and I agree about.
In that context, it is hard to see the Government’s ineffective and deliberately cruel treatment of asylum seekers (and the ECHR) as anything other than a cynical distraction from the fact that they don’t even aspire to improve the living standards of British people.
Whether that is the act of an avowedly racist government or merely one that panders to those who prefer ineffectual racism to actual solutions is, to me, a distinction without difference.

Alex Carnegie
Alex Carnegie
11 months ago
Reply to  George Venning

Ah. Maybe we do agree basically after all! Migration over the last ten years has been such an oscillation between too much and too little that is easy to confuse oneself when debating the issue.

The current situation, where the government is simultaneously trying to boost immigration from places like Mexico while hoping to confine those from Afghanistan in barges, suggests the government is not only hypocritical but also rather muddled. Perhaps it is a messy compromise between an inflation hating Treasury and the Suella camp.

In the long run, however, I still think there will be “too much” migration and political pressure will lead to a robustly enforced Australian style approach. If this forecast is right, the ECHR risks being collateral damage.

But thanks for your comments. UnHerd publishes articles expressing a good range of opinion but the comments section appears currently to be drifting into being yet another echo chamber. The more (reasonable) dissent the better.

Rocky Martiano
Rocky Martiano
11 months ago

We have already had someone worse than Trump as PM.

George Venning
George Venning
11 months ago

No I’m saying that stagnating incomes are precisely the problem. But I’m saying that the current economic model requires income to be held down and significant migration is part of the mechanism that achieves this.

Our stingy benefits system plays at least as important a role in holding down wage demands as migration as a whole (forget asylum). And yet all we ever talk about is small boats.

As to the ECHR, it’s fine. It’s not perfect, nor is any other system. It’s simply a distraction

rupert carnegie
rupert carnegie
11 months ago
Reply to  George Venning

About many things but perhaps not about which issue deserves priority. I agree that 500 is a rounding error and even the obsession with the 40,000 arriving by boat is either dumb or – as you suggest – a diversionary tactic.

At the risk of putting words in your mouth, I think you are framing the issue mainly around the defence of rights and see the ECHR as their best (albeit imperfect) guarantor – and treat stagnating incomes for the poorest third as a separate, secondary or unrelated issue.

My thought process, on the other hand, starts with the stagnating and declining incomes, which I regard as a problem that must be dealt with or we will end up with someone even worse than Trump as PM. From there I am led inexorably – if somewhat queasily – to a genuinely (and not merely performatively) robust immigration policy amongst other things.

Different starting points; different conclusions.

Last edited 11 months ago by rupert carnegie
George Venning
George Venning
11 months ago

I think we agree no?
The point is this, no-one would be talking about leaving the ECHR simply because it is a constitutional oddity and a constraint on sovereignty. It is both of those things but at an entirely manageable level.
They are talking about it because it stops the Government from doing something it claims to want to do. And thus, attacking the ECHR provides a distraction from the obvious truth that sending 500 asylum seekers to Rwanda won’t have the square root of eff all effect on aggregate levels of migration – much less end our low-wage economic model.
If the public conversation spent half as much time talking about stagnating wage levels as it does about this stupid barge, the conservatives would be long gone.

Steve Murray
Steve Murray
11 months ago
Reply to  George Venning

Where on earth did you learn to start putting ” . ” between paragraphs? It just takes up unnecessary space when scrolling. Please desist.

Aidan Anabetting
Aidan Anabetting
11 months ago
Reply to  George Venning

Yes, you can sense the desperation to get the debate back to nationalism rather than ever admit or address the underlying structural failings. From today’s Telegraph: ““The UK remains the only G7 country in which the main quarterly measure of GDP has not recovered to its pre-Covid peak yet.”

rupert carnegie
rupert carnegie
11 months ago
Reply to  George Venning

You make some good points. I agree there is a lot of muddled thinking and hypocrisy in the immigration debate. 

Your observation that we have an economy that is structurally addicted to immigration is undoubtedly correct currently e.g. if the Treasury refuses to fund sufficient training of doctors in the U.K. then the deficit has to be made up with individuals trained abroad (often at the expense of third world governments). In the long run, however, this is a matter of choice.

It is also true that the way BREXIT was sold involved an element of “bait and switch”. Many of those voting leave wanted immigration reduced (for a variety of acceptable and less admirable reasons) while many of the financial backers dreamt of a “Singapore on the Thames” and were indifferent to the issue. BREXIT Britain has ended up closer to the second less populist version.

That said, there are reasons to think that a more aggressively managed approach to immigration is almost inevitable. I fear the toughness will not be just “performative”. 

1/ No liberal democracy can long survive without lurching into populism if a third of the population is experiencing stagnating or declining standards of living. There are other factors – globalisation, automation, misguided deregulatory and welfare reforms, etc – but the imbalance at the less skilled end of the labour market before BREXIT was partly due to high immigration of unskilled labour. If you do not want more politicians like Trump, Boris and Farage – or worse – then it is essential that the steady increase of real incomes for ordinary people that characterised the British economy in the period from the 1850s to 2008 resumes. Mild unskilled labour shortages will provide this; excess unskilled immigration will undercut it.

2/ The response to the above will continue to involve a points system. Skilled immigrants are inevitably more welcome than the unskilled. As Australia demonstrates, however, the dark side of this approach is an upsettingly robust approach to those with few points or who seek to arrive illegally or undocumented.

3/ The challenges are only going to get more extreme. Arguably, British society can cope with the current level of economic and illegal migrants. The number coming by boat is a statistical irrelevance. But the population of Africa alone has grown from 230 m in 1950 to 1.3 bn today and is projected to rise to 2.5 bn by 2050. The local economies are not growing fast enough and global warming is expected to hit the Sahel and West Africa especially hard. The number of would-be economic migrants from there is likely to expand significantly. The same logic applies in the Middle East and Central Asia.

Since the 1960s one litmus test of whether an individual held acceptably liberal views has been the immigration issue. My guess is that over the next ten years this will change and that, given the above, a far harder nosed approach will become the norm. Britain’s more altruistic overseas impulses will perhaps become more focussed on helping people where they are and not where they would like to be. If the ECHR is seen as an obstacle, I suspect that it will – one way or another – be either ignored or swept aside. I also think that identity cards are probable on similar logic. Nor is the UK alone. The same issues challenge many other European countries from Sweden to Italy.

In the long run, I fear the fate of the UK’s relationship with the ECHR will be seen as a mere implementation issue arising from a debate about immigration policy. Unfortunately, the ECHR is about far more.

Last edited 11 months ago by rupert carnegie
George Venning
George Venning
11 months ago

Of course you can make a case for withdrawing from any piece of international law on the basis that it limits and curtails national and parliamentary sovereignty. And you can certainly make a case that, where the international body or treaty is an evolving one, the curtailment of sovereignty is more problematic because its impact was unknown at the time it was entered into. To put it briefly, duh.
.
You could, of course, make precisely the same case for withdrawal from NATO – which entails obligations on the UK whose nature has changed dramatically and which the UK does not control. Or the World Bank, or the WTO – all of these are living and evolving institutions
.
For all the legal flummery here, the point is not that all infringments of sovereignty and misalignments with the will of Parliament should be rejected. It is that we are entitled to consider how well they serve us. Again, duh.
.
No-one is really suggesting leaving the ECHR because of it’s legal doctrines. No-one seems remotely bothered about the role of the ECHR in continuing to guarantee privacy, freedom from torture or the right to a fair trial. The ECHR did not create those freedoms but it is how we currently secure them and it does OK at it because it is (generally) aligned with us.
.
Let’s face it, the reason a certain sort of politician is constantly enraged at the ECHR is because it insists that we treat asylum seekers with a bare minimum of decency. Treating those who are fleeing war and persecution decently does not, in itself, enrage anyone I know. We’re still busily erecting (not very good) statues to the Kindertransport.
.
The answer is that Tory politicians like to cover up the uncomfortable and upopular fact that the economy is deeply dependent upon legal immigration by conflating that immigration with asylum. Then, such politicians like to claim that the asylum seekers would stop coming if only the ECHR would stop infringing British sovereignty by allowing the UK government to create a sufficiently hostile environment. It’s cobblers
.
Prof Ekins is all mild manners and sensible about this. But the fact is that, like the EU itself, the ECHR is merely a scapegoat which Conservative governments like to use as a distraction from their own abject failures. Let’s remember that, having left the EU in order to end the free movement of people from within the EU, they simply introduced greater freedom of movement from elsewhere. To distract us from that, the Government is as performatively nasty as it can be to asylum seekers (sending a trivial number of people to Rwanda, painting over murals, acquiring expensive prison hulks) and blaming the ECHR for thwarting it. If we left the ECHR, some other scapegoat would immediately be created to replace it.
.
Exiting the ECHR won’t change a single thing because the ECHR isn’t actually the problem. Any more than the EU was.
.
If you want to fix the country through constitutional reform, let’s start with the basics eh? Starting with electoral reform. Maybe replacing the House of Lords with something a little less startlingly corrupt.

Ewen Mac
Ewen Mac
11 months ago

When Boris said “Taking Back Control” several hundred thousand times, he didn’t specify that we wouldn’t actually be taking back control unless we also left the ECHR.
Either he forgot to mention it or, as Mary Harrington recently detailed in her excellent essay, the ‘small boats’ bunfight is a sideshow to distract people from noticing the highest legal immigration rate in British history. Especially people who assumed that “Taking Back Control” would mean a significant reduction in legal immigration.
Who’ll be the next body who’s stopping us from governing ourselves competently? The Eurovision Song Contest?

Ewen Mac
Ewen Mac
11 months ago

When Boris said “Taking Back Control” several hundred thousand times, he didn’t specify that we wouldn’t actually be taking back control unless we also left the ECHR.
Either he forgot to mention it or, as Mary Harrington recently detailed in her excellent essay, the ‘small boats’ bunfight is a sideshow to distract people from noticing the highest legal immigration rate in British history. Especially people who assumed that “Taking Back Control” would mean a significant reduction in legal immigration.
Who’ll be the next body who’s stopping us from governing ourselves competently? The Eurovision Song Contest?

Mark epperson
Mark epperson
11 months ago

My English friends cut the knot entirely. The ECHR is a bureaucrat’s wet dream and is absolute rubbish. The sooner, the better.

Mark epperson
Mark epperson
11 months ago

My English friends cut the knot entirely. The ECHR is a bureaucrat’s wet dream and is absolute rubbish. The sooner, the better.

Katharine Eyre
Katharine Eyre
11 months ago

Reading this rather makes me think the UK/ECHR collision-waiting-to-happen is quite similar to the Germany/ECJ-ECB collision we’ve witnessed in recent years concerning the ECB’s bond buying programme.
The ECB has also been quite creative in the way it interprets its own mandate and it was grating more and more against the core principles of the German constitution: at some point there was going to be a showdown. The German Constitutional Court fired a couple of shots over the ECB’s bows first before it all came to a head: as I remember, some good old European fudge was applied to placate the Germans, find a way for the ECB to move forward (hopefully chastened somewhat) and allow both parties to back down, diffuse the conflict and save face.
The same will happen with the ECHR. The Tories need to be very careful in the way that they approach this. Rabid, lurid campaigning against it, featuring the kind of statements heard from Tory ranks this week (“migrants who don’t want to go on the Bibby Stockholm can f*ck off back to France”) are going to go down really badly internationally (including with the Yanks due to the link to the GFA). More rational, principled debate and discussion along the lines of this article would be the way forward.
Let’s be honest: the UK is never going to leave the ECHR and put itself in the company of Russia and Belarus. What could happen (if your politicians are smart) is that you can kind of push back on Strasbourg’s “competence creep”. If the UK succeeds in doing that, I think there would be several governments in Europe who would (secretly) be quite thankful. The US government will be happy too, as its ally isn’t siding with the enemy or messing with the GFA…and frankly, having their own illegal immigration fiasco going on, the Americans should have ample sympathy for the British (and larger European) predicament.
[Side note: until this morning, I wasn’t aware that “subjection” was actually a word. I would have written:
“However, membership of the ECHR and being subject subjection to the jurisdiction of the Strasbourg Court”.
Now I know better!]

Last edited 11 months ago by Katharine Eyre
Charles Stanhope
Charles Stanhope
11 months ago
Reply to  Katharine Eyre

Jettisoning the ECHR does NOT mean putting ourselves “in the company of Russia and Belarus”.

It means putting ourselves back to 1951 when ‘we’ still knew how to behave.
The nonsense trotted out about so called Human Rights is simply ridiculous, and not a little divisive.
There is far too much bleating about ‘rights’ and virtually nothing about ‘obligations’. This must cease, if we are to move forward.

Katharine Eyre
Katharine Eyre
11 months ago

Well that might be how you see it but the court of international public opinion will not – and Britain cannot get around that Realpolitik. Especially not with the war in the Ukraine going on.

Charles Stanhope
Charles Stanhope
11 months ago
Reply to  Katharine Eyre

Ha! “the court of international public opinion”!
As dictated by the doyens of Quislington no doubt?

Not for me, “ourselves alone” will suffice.

Peter Kwasi-Modo
Peter Kwasi-Modo
11 months ago

“the court of international opinion”? Oh yes, that’s Bob Geldof and George Cloony’s missus, isn’t it?

Rocky Martiano
Rocky Martiano
11 months ago

Well it’s certainly not the two-thirds of the world that doesn’t back sanctions against Russia or Net Zero,

Rocky Martiano
Rocky Martiano
11 months ago

Well it’s certainly not the two-thirds of the world that doesn’t back sanctions against Russia or Net Zero,

Frank McCusker
Frank McCusker
11 months ago

Hmm, you’ve more in common with Sinn FĂ©in than you realise : )

Charles Stanhope
Charles Stanhope
11 months ago
Reply to  Frank McCusker

Well spotted!

Charles Stanhope
Charles Stanhope
11 months ago
Reply to  Frank McCusker

Well spotted!

Peter Kwasi-Modo
Peter Kwasi-Modo
11 months ago

“the court of international opinion”? Oh yes, that’s Bob Geldof and George Cloony’s missus, isn’t it?

Frank McCusker
Frank McCusker
11 months ago

Hmm, you’ve more in common with Sinn FĂ©in than you realise : )

Charles Stanhope
Charles Stanhope
11 months ago
Reply to  Katharine Eyre

Ha! “the court of international public opinion”!
As dictated by the doyens of Quislington no doubt?

Not for me, “ourselves alone” will suffice.

Katharine Eyre
Katharine Eyre
11 months ago

Well that might be how you see it but the court of international public opinion will not – and Britain cannot get around that Realpolitik. Especially not with the war in the Ukraine going on.

Sam Hill
Sam Hill
11 months ago
Reply to  Katharine Eyre

‘What could happen (if your politicians are smart) is that you can kind of push back on Strasbourg’s “competence creep”. If the UK succeeds in doing that, I think there would be several governments in Europe who would (secretly) be quite thankful.’
I doubt neither the sentiment nor the truth of that. But surely the ECHR is a prime example of the fundamental issue with all these intergovernmental/supranational things – the inherent constitutional deficit.
As you say, I suspect that a lot of people around Europe would be happy to see these judges put back in their box – it really should have happened after the Lautsi debacle, or the massive human rights failures on lockdown and coerced vaccination. But all you do is beg the question of why this has not been done already, and how realistically one does reign in the ECHR.
Once you start to outsource this stuff then you can never get it back – it is permanent and whatever direction it goes in your political and electoral successors are stuffed. Powers were given away by people who had no right to give them and the legal profession will cling on for grim death.
We saw this most glaringly with the EU. What we have now is a very, very long way from what we had in the 1950s. The neofunctionalists, it turns out were both very unfashionable and very correct.
Granted – all this may be a particular issue in the UK where politicians (of all parties) have taken a very instrumental view of things. But with due respect your comment feels rather aspirational – the fact that elected governments have problems reigning in these intergovernmental and supranational types speaks to a constitutional deficit that is really not a good thing.

David Yetter
David Yetter
11 months ago
Reply to  Katharine Eyre

But leaving the ECHR would would not put the UK “in the company of Russia and Belarus”. The whole point of the UK leaving the ECHR is that the conception of human rights embodied in the Common Law is superior to that promulgated by the ECHR. On the other hand, the conception of human rights held by Russia and Belarus (and, for that matter China) — that the rights of the individual non-existent if their exercise conflicts with the interests of the state — is inferior to both that set forth by the ECHR and to that based in the Common Law.

Charles Stanhope
Charles Stanhope
11 months ago
Reply to  Katharine Eyre

Jettisoning the ECHR does NOT mean putting ourselves “in the company of Russia and Belarus”.

It means putting ourselves back to 1951 when ‘we’ still knew how to behave.
The nonsense trotted out about so called Human Rights is simply ridiculous, and not a little divisive.
There is far too much bleating about ‘rights’ and virtually nothing about ‘obligations’. This must cease, if we are to move forward.

Sam Hill
Sam Hill
11 months ago
Reply to  Katharine Eyre

‘What could happen (if your politicians are smart) is that you can kind of push back on Strasbourg’s “competence creep”. If the UK succeeds in doing that, I think there would be several governments in Europe who would (secretly) be quite thankful.’
I doubt neither the sentiment nor the truth of that. But surely the ECHR is a prime example of the fundamental issue with all these intergovernmental/supranational things – the inherent constitutional deficit.
As you say, I suspect that a lot of people around Europe would be happy to see these judges put back in their box – it really should have happened after the Lautsi debacle, or the massive human rights failures on lockdown and coerced vaccination. But all you do is beg the question of why this has not been done already, and how realistically one does reign in the ECHR.
Once you start to outsource this stuff then you can never get it back – it is permanent and whatever direction it goes in your political and electoral successors are stuffed. Powers were given away by people who had no right to give them and the legal profession will cling on for grim death.
We saw this most glaringly with the EU. What we have now is a very, very long way from what we had in the 1950s. The neofunctionalists, it turns out were both very unfashionable and very correct.
Granted – all this may be a particular issue in the UK where politicians (of all parties) have taken a very instrumental view of things. But with due respect your comment feels rather aspirational – the fact that elected governments have problems reigning in these intergovernmental and supranational types speaks to a constitutional deficit that is really not a good thing.

David Yetter
David Yetter
11 months ago
Reply to  Katharine Eyre

But leaving the ECHR would would not put the UK “in the company of Russia and Belarus”. The whole point of the UK leaving the ECHR is that the conception of human rights embodied in the Common Law is superior to that promulgated by the ECHR. On the other hand, the conception of human rights held by Russia and Belarus (and, for that matter China) — that the rights of the individual non-existent if their exercise conflicts with the interests of the state — is inferior to both that set forth by the ECHR and to that based in the Common Law.

Katharine Eyre
Katharine Eyre
11 months ago

Reading this rather makes me think the UK/ECHR collision-waiting-to-happen is quite similar to the Germany/ECJ-ECB collision we’ve witnessed in recent years concerning the ECB’s bond buying programme.
The ECB has also been quite creative in the way it interprets its own mandate and it was grating more and more against the core principles of the German constitution: at some point there was going to be a showdown. The German Constitutional Court fired a couple of shots over the ECB’s bows first before it all came to a head: as I remember, some good old European fudge was applied to placate the Germans, find a way for the ECB to move forward (hopefully chastened somewhat) and allow both parties to back down, diffuse the conflict and save face.
The same will happen with the ECHR. The Tories need to be very careful in the way that they approach this. Rabid, lurid campaigning against it, featuring the kind of statements heard from Tory ranks this week (“migrants who don’t want to go on the Bibby Stockholm can f*ck off back to France”) are going to go down really badly internationally (including with the Yanks due to the link to the GFA). More rational, principled debate and discussion along the lines of this article would be the way forward.
Let’s be honest: the UK is never going to leave the ECHR and put itself in the company of Russia and Belarus. What could happen (if your politicians are smart) is that you can kind of push back on Strasbourg’s “competence creep”. If the UK succeeds in doing that, I think there would be several governments in Europe who would (secretly) be quite thankful. The US government will be happy too, as its ally isn’t siding with the enemy or messing with the GFA…and frankly, having their own illegal immigration fiasco going on, the Americans should have ample sympathy for the British (and larger European) predicament.
[Side note: until this morning, I wasn’t aware that “subjection” was actually a word. I would have written:
“However, membership of the ECHR and being subject subjection to the jurisdiction of the Strasbourg Court”.
Now I know better!]

Last edited 11 months ago by Katharine Eyre
David Lindsay
David Lindsay
11 months ago

The ECHR has not prevented the enactment of the Public Order Act that Labour has entirely predictably promised not to repeal, despite the fact that even the Police have apologised for arrests made pursuant to it, which had led to no charges so pursuant. Most Labour MPs and the whole of the party’s staff are well to the right of at least half of Conservative MPs, and comprise a downmarket reserve team for when the Conservatives needed an occasional spell out of office.

Of course, nor has the ECHR prevented the enactment of the Covert Human Intelligence Sources (Criminal Conduct) Act, of the Overseas Operations (Service Personnel and Veterans) Act, of the Nationality and Borders Act, of the Elections Act, of the Strikes (Minimum Service Levels) Act, of the National Security Act, or of the Police, Crime, Sentencing and Courts Act. It will not keep the Online Safety Bill off the Statute Book. No one seriously imagines that a Labour Government would repeal any of those, either.

The ECHR does not preclude the Home Secretary from stripping people of their British citizenship, now without even having to tell them. It has presented no obstacle to vaccine passports. It is doing nothing for Julian Assange. It is not breached by the Trade Union Act 2016. Most countries that subscribe to the ECHR already have identity cards. Thus defined, Keir Starmer is indeed a human rights lawyer.

Nothing that had largely been written by David Maxwell Fyfe ever did have anything to do with those of us who sought to strengthen families and communities by securing economic equality and international peace through the democratic political control of the means to those ends, including national and parliamentary sovereignty. Not the EU into which he castigated Anthony Eden for not having taken the United Kingdom at the start. And not the ECHR, either.

There was a reason why the ECHR’s incorporation into British domestic law was never attempted by any Labour Government until Tony Blair’s. It duly proved useless as civil liberties were shredded; it was the House of Commons that stopped the detention of people for 90 days without charge. And it duly proved useless as the poor, the sick and the disabled were persecuted on a scale and with a venom that had not been seen since before the War, if ever. That persecution continued into and as the age of austerity. Long before Brexit, Covid-19, or the invasion of Ukraine, even as Red Cross food parcels were distributed to our starving compatriots, human rights legislation was of only the most occasional use, if any. That has always been the intention.

In May 1948, the pompously self-styled Congress of Europe assembled in the Hall of Knights, in The Hague. Addressing that assembly, Winston Churchill called it “the Voice of Europe”. But in fact it was mostly made up of politicians who had recently been defeated at the polls, of the representatives of Royal and Noble Houses that had fairly recently been dispossessed at least in political terms, of the likes of Churchill who fell into both categories, and of people whose lives’ work was trying to delude themselves that so did they.

In the name of the order that had held sway for a century between the defeat of Napoleon and the First World War, the order to which the ReichsbĂŒrger would wish to return, their aim was very explicitly to check the social democracy that was sweeping Western Europe at the time. The material that they produced had that intention, and it has had that effect. Lo and behold, Blair had it written into British domestic law. And lo and behold, the body that he created for its enforcement, when it has not been sacking its black and disabled staff first, and when it has not been failing to find anything wrong with the Government’s handling of the Windrush scandal, played a key role in bringing down Jeremy Corbyn. Not that he helped himself by backing down when he ought to have been fighting back. But “Equality and Human Rights”? What equality, exactly? Which human’s rights?

David Lindsay
David Lindsay
11 months ago

The ECHR has not prevented the enactment of the Public Order Act that Labour has entirely predictably promised not to repeal, despite the fact that even the Police have apologised for arrests made pursuant to it, which had led to no charges so pursuant. Most Labour MPs and the whole of the party’s staff are well to the right of at least half of Conservative MPs, and comprise a downmarket reserve team for when the Conservatives needed an occasional spell out of office.

Of course, nor has the ECHR prevented the enactment of the Covert Human Intelligence Sources (Criminal Conduct) Act, of the Overseas Operations (Service Personnel and Veterans) Act, of the Nationality and Borders Act, of the Elections Act, of the Strikes (Minimum Service Levels) Act, of the National Security Act, or of the Police, Crime, Sentencing and Courts Act. It will not keep the Online Safety Bill off the Statute Book. No one seriously imagines that a Labour Government would repeal any of those, either.

The ECHR does not preclude the Home Secretary from stripping people of their British citizenship, now without even having to tell them. It has presented no obstacle to vaccine passports. It is doing nothing for Julian Assange. It is not breached by the Trade Union Act 2016. Most countries that subscribe to the ECHR already have identity cards. Thus defined, Keir Starmer is indeed a human rights lawyer.

Nothing that had largely been written by David Maxwell Fyfe ever did have anything to do with those of us who sought to strengthen families and communities by securing economic equality and international peace through the democratic political control of the means to those ends, including national and parliamentary sovereignty. Not the EU into which he castigated Anthony Eden for not having taken the United Kingdom at the start. And not the ECHR, either.

There was a reason why the ECHR’s incorporation into British domestic law was never attempted by any Labour Government until Tony Blair’s. It duly proved useless as civil liberties were shredded; it was the House of Commons that stopped the detention of people for 90 days without charge. And it duly proved useless as the poor, the sick and the disabled were persecuted on a scale and with a venom that had not been seen since before the War, if ever. That persecution continued into and as the age of austerity. Long before Brexit, Covid-19, or the invasion of Ukraine, even as Red Cross food parcels were distributed to our starving compatriots, human rights legislation was of only the most occasional use, if any. That has always been the intention.

In May 1948, the pompously self-styled Congress of Europe assembled in the Hall of Knights, in The Hague. Addressing that assembly, Winston Churchill called it “the Voice of Europe”. But in fact it was mostly made up of politicians who had recently been defeated at the polls, of the representatives of Royal and Noble Houses that had fairly recently been dispossessed at least in political terms, of the likes of Churchill who fell into both categories, and of people whose lives’ work was trying to delude themselves that so did they.

In the name of the order that had held sway for a century between the defeat of Napoleon and the First World War, the order to which the ReichsbĂŒrger would wish to return, their aim was very explicitly to check the social democracy that was sweeping Western Europe at the time. The material that they produced had that intention, and it has had that effect. Lo and behold, Blair had it written into British domestic law. And lo and behold, the body that he created for its enforcement, when it has not been sacking its black and disabled staff first, and when it has not been failing to find anything wrong with the Government’s handling of the Windrush scandal, played a key role in bringing down Jeremy Corbyn. Not that he helped himself by backing down when he ought to have been fighting back. But “Equality and Human Rights”? What equality, exactly? Which human’s rights?

Malcolm Knott
Malcolm Knott
11 months ago

Fortunately, even if the Supreme Court finds against the government we shan’t have to watch Brenda Hale and her spider brooch chortling over their defeat.

Malcolm Knott
Malcolm Knott
11 months ago

Fortunately, even if the Supreme Court finds against the government we shan’t have to watch Brenda Hale and her spider brooch chortling over their defeat.

Frank McCusker
Frank McCusker
11 months ago

I’m an English-qualified and City trained solicitor, qualified 1995. This article is glib. â€œLeave the ECHR and with one bound we’re free” etc  
Simple as that, eh?
NaĂŻve.
I favour the UK exiting as many international organisations / treaties as it can, if only to put an end to the self-pitying scapegoating otherwise indulged in on the pretext of said memberships.  

Frank McCusker
Frank McCusker
11 months ago

I’m an English-qualified and City trained solicitor, qualified 1995. This article is glib. â€œLeave the ECHR and with one bound we’re free” etc  
Simple as that, eh?
NaĂŻve.
I favour the UK exiting as many international organisations / treaties as it can, if only to put an end to the self-pitying scapegoating otherwise indulged in on the pretext of said memberships.  

UnHerd Reader
UnHerd Reader
10 months ago

Brexit would be pointless without removing this court that surreptitiously imposes European policy on the UK.
The exit vote was about open borders for cheap labour migration from the thawed East.
This is now the updated problem coming from post-Gadaffi North Africa. The UK has to be fully independent to deal with the problem like Australia has in the past with offshoring and turning all these boats back to their country of departure.

j watson
j watson
11 months ago

The article predominantly focuses on the ‘legalise’ rather than the politics associated. So the Author only half engages with the real dilemma. Withdrawing from the ECHR has international political implications rightly or wrongly, including it’s role in a range of Treaties.
That said Author also seems to imply it can be legitimately ignored when needed too, albeit with perhaps a little more difficulty re: new legislation. So perhaps we push this approach a bit more and just get on with it?
Nonetheless the Article also flags currently the pertinent immigration and asylum cases are not stuck with ECHR but still within our own legal system. Sorting that entirely in our Govt’s gift but they’ve fouled up our Justice system as much as most of the rest of the public realm. But one also suspects the ECHR a useful scapegoat they want to keep pushing forward with little intention of really solving or making a decision. Keep finding the ‘other’ one can blame when one has made a complete hash of things etc etc. Be aware when being ‘played’.

Aidan Anabetting
Aidan Anabetting
10 months ago
Reply to  j watson

Yup

Aidan Anabetting
Aidan Anabetting
10 months ago
Reply to  j watson

Yup

j watson
j watson
11 months ago

The article predominantly focuses on the ‘legalise’ rather than the politics associated. So the Author only half engages with the real dilemma. Withdrawing from the ECHR has international political implications rightly or wrongly, including it’s role in a range of Treaties.
That said Author also seems to imply it can be legitimately ignored when needed too, albeit with perhaps a little more difficulty re: new legislation. So perhaps we push this approach a bit more and just get on with it?
Nonetheless the Article also flags currently the pertinent immigration and asylum cases are not stuck with ECHR but still within our own legal system. Sorting that entirely in our Govt’s gift but they’ve fouled up our Justice system as much as most of the rest of the public realm. But one also suspects the ECHR a useful scapegoat they want to keep pushing forward with little intention of really solving or making a decision. Keep finding the ‘other’ one can blame when one has made a complete hash of things etc etc. Be aware when being ‘played’.