October 14, 2024 - 7:00am
The Conservatives had just suffered the worst defeat in their history and a contentious leadership contest was dividing the party. One candidate, in an attempt to instil unity, offered Conservative MPs a free vote; the other insisted that, should he take charge of the party, the entire Shadow Cabinet would have to follow his line.
The year was 1997. The candidate demanding loyalty was William Hague, the 36-year-old who would go on to lead the Tories. And the European issue then dividing Britain’s oldest, most successful, but recently routed, political party was the single European currency.
Fast forward over a quarter of a century: everything has changed but, in a sense, nothing has changed. Robert Jenrick, who is vying with Kemi Badenoch to lead the Conservatives, has made leaving the European Convention on Human Rights (ECHR) the flagship policy of his leadership campaign. In an echo of Hague’s approach he has said that victory in the contest will give him a mandate to add ECHR-exit to “the stable of Conservative Party policies”.
Jenrick’s robustness on the ECHR has served him well so far. It has given him a distinct policy not pursued during the last 14 years of Conservative-led government and framed him as the candidate most serious about tackling illegal immigration, and consequently the most determined to win back support from Reform UK. (Few Tories doubt that the road back to government requires this, as a minimum.) It has also put clear blue water between him and the other leadership candidates, none of whom matched his clear-cut pledge.
But some Conservatives are wary, especially those who remember the party’s efforts to drag itself out of the nadir after 1997. Back then, the party (also in opposition) could do nothing to shape Britain’s relationship with Europe. The Tories’ focus and fissures on the issue just served to make them look divided. The candidate Hague defeated, Ken Clarke, even refused to serve in the Shadow Cabinet.
Could history repeat itself? When pushed on whether his commitment to leave the ECHR would permit defeated leadership candidates who have cast doubt on his plan, such as James Cleverly, to serve in his Shadow Cabinet, Jenrick said, “I would be delighted for him to serve”.
It’s the obvious answer — and what the dynamics in the current Parliament demand. Leading just 120 fellow Tory MPs, fewer than 100 of whom served in the last Parliament, Jenrick would need talented and experienced former ministers like Cleverly to sit around his top table if he is to put together a Shadow Cabinet of weight and experience. But the more shibboleths he makes them speak, the less willing they may be to serve.
Beyond internal Tory politics, Jenrick’s supporters believe pledging to leave the ECHR will give the Conservatives a distinct approach from Labour. They expect it to pay dividends when Keir Starmer’s plan to “smash the gangs” fails to end Channel crossings, as even many Labour supporters fear is likely.
If, in almost five years’ time, Britain has not found a solution to illegal migration within the ECHR, leaving it could prove popular with the voters the Conservative most need to recover. But a lot can happen between now and then to make boxing the party into a fixed solution unwise. Starmer could defy the odds and find a way of tackling illegal migration. Or dynamics on the continent could see European migration patterns, or even the application of the ECHR, change radically.
That might seem unlikely now, but 2029 is a long way away. As the Conservatives look to the future, wise heads will be warning them against committing to too much too soon. What’s more, they will urge them to avoid, unless absolutely necessary, reopening the wound — Britain’s relationship with Europe — that has tended to divide the Tories more than any other.
Lee David Evans is an historian of the Conservative Party and the John Ramsden Fellow at the Mile End Institute at Queen Mary, University of London.
LeeDavidEvansUK
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SubscribeAt some point it will become common knowledge that all the U.K. needs to do is repeal the Human Rights Act that put the ECHR rulings above U.K. law. Repeal that, and we can just ignore the “advisories” from the Europeans. It will take time for this to sink in, so for the moment Jenrick is probably right to frame the discussion in a simplistic way.
Kemi Badenoch is interesting on this point that she believes that we need to change the culture at the Home Office, courts and other enforcement agencies as well as change the law. It is quite possible that we could legislate to give UK law precedence over ECHR law but the activists embedded in the system would still find ways to gum up the works.
What’s also interesting is she’s not calling for withdrawal from ECHR.
Tories allowed a massive backlog to build up whilst also enforcing resource reductions on the Courts system. Then they didn’t build any holding centres.
Point being the big ‘cultural’ issues were decisions made by the elected Right wing politicians
Except they weren’t right wing were they? Just the basic Uniparty ( Truss excepted, and we know what they did to her ).
Braverman, Patel not Right wing? Ran the Home office as you’ll remember.
Truss interesting had a more liberal approach to immigration as needed in her pursuit of Growth. She was in process of further loosening process on legal migration.
So how many more contortions can you pull?
Well we’ve seen what the far Left in Starmer’s supposedly Centre left party are capable of. Devoid of any brains, they open their gobs and all hell is let loose. Let’s see Reeves, Haigh, Phillipson, .Rayner. He’s on borrowed time with this nest of Corbynite vipers.
As for growth how will a Bill of £8 billion and rising to look after these unskilled parasites help the economy?
She is right that this is a war with many fronts.
Politically repealing the HRA doesn’t have quite the ‘pull’ electorally that something about a foreign body might. There’s a lot of other stuff in the HRA people welcome. So he’s work to do to explain what will replace it.
For now of course it won’t matter in the Leadership race as the immediate Tory membership goes for platitudes. But to win the Country will be a different matter. One has to doubt repealing the HRA going to gain quite as much as what he might be offering on the economy, health services, etc etc. Does sound like updated version ‘save the pound’ Hague-ism.
I don’t think it has ever been properly explained to the electorate that if their own elected representatives in Parliament pass a law, it can be ( and regularly is ) overridden by an unelected group in a foreign country.
Even if this is grasped on some general level, in particular cases the idea is so absurd that it surely couldn’t be true.
What law is this you are referring to here NF? Not entirely clear.
Just so you know – the decisions on Rwanda deportation never actually got to the ECHR under last Govt. They didn’t get past our own Courts so it’s deflection to blame the former and some 3rd party entity. Now you may have a conversation point about how Judges determine between contradictory laws within the same Country. That is usually where reading the v carefully crafted judgments can aid understanding.
Yes snd regain some perfectly decent freedoms like habeas corpus, the unfettered right to silence etc when all this legislative guff is thrown out.
Smashing the “lawyers business model” is the first step to solving our immigration-related issues.
Who in their right minds would not want to exit the ECHR
Well said….took the words out of my mouth. Because Britain has such a lawyer-infested establishment, this is its great omerta in discussions about illegal migration.
Best joke of the week and it’s not even 9am on Monday morning:
“Starmer could defy the odds and find a way of tackling illegal migration.”
He could. He could also invent a means of faster than light travel. But I respectfully suggest to the author, the odds are slightly against, for both cases.
He might even discover some strategic capability and an internal moral compass around freebies, but I suspect he’ll invent faster than speed of light travel first
Yes, make the UK so poor no-one would want to come.
There’s a lot of ruin in a country, but on early evidence 2TK and his not-so-merry men and women may yet find a way to deter illegal immigration.
Who on earth thinks the asylum seekers and the people smugglers paying much attention to the nuances and political debate about the ECHR?
Let’s assume we aren’t in the ECHR, or it makes different judgments – is the trade reducing and where are we sending those not granted asylum? Rwanda was a drop in the ocean at best. Much more fundamental is sorting out return deals and stemming the flow via other means. We’ve a track record before the Tories allowed the backlog to build up on sending back a decent proportion. We need to get back to that.
As regards the ECHR – Bob Generic has to answer what Court of arbitration he’ll then put in place for the GFA which can be mutually agreed with the Eire/EU? He won’t. Too difficult, and besides he’s no real intention of following through if he ever got into power. Unilaterally ripping up the GFA not going to happen.
As it is Kemi has quite deliberately not matched this promise. She knows it’s daft and all about virtual signalling. It’s a desperate attempt by Generic to outflank her and nothing else.
Agreed, he has reduced a gargantuan issue into a soundbite.
It’s analogous to Brexit. Best way is to just “rip the plaster off” and take it from there. Over-intellectualising gets us nowhere.
“Ripping the plaster off and taking it from there” does do something, as demonstrated by Brexit. It creates rather a large amount of chaos. Not sure that’s a very good idea when it comes to things like international law.
Brexit didn’t create chaos – people did.
The question I have been asking for ages, and to which no one has yet come close to providing a coherent answer, is: what exactly is the cost of leaving the ECHR? Rory Stewart for example has waffled on about the fact that the disadvantages of leaving the ECHR would outweigh any advantages, without ever actually spelling out what those disadvantages might be. Ditto many other politicians including to a lesser extent Badenoch.
Anyone making the case for Remain for example would invariably point to friction in doing business, leading to an amount of reduced trade, extra paperwork, increased costs, yada yada, all aggregating over time to make us poorer. It’s not an argument I buy, but I can see the lines of argument. But no one ever provides any actual lines of argument about why staying in the ECHR is such a great thing.
What am I missing?
It’s not clear if you are mixing up the ECJ with the ECHR? They are two entirely different bodies. The ECJ oversees the rules of the Single Market, Customs Union etc. The ECHR is not part of the EU. (I appreciate you may already understand this but your comment left a bit unclear).
Two obvious downsides to ECHR withdrawal – they are integral to Good Friday Agreement and the Trade & Cooperation Agreement and thus offer a mutually agreed (UK signed both Treaties) arbitration mechanism for HR related issues that might arise. One suspects the GFA the more complicated as who knows where we’ll be on the TCA come 2029. The impact of unilaterally removing it from the agreement would ripple to our whole relationship with the US where the Irish lobby is strong.
Of course the optics of being alongside Russia and Belarus in not being party to ECHR a slightly different matter too.
Sounds like legalistic nonsensical jargon. I am suspicious of any lines of argument that include phrases like “integral to” and “ripple” and the like. Do better. Be more concrete. What would it cost? As in wonga?
Not entirely sure what you mean ‘cost’ in ‘wonga’? The people promulgating it would need to do the risk assessment, and there is significant risk it could damage trade v significantly with that falling on the UK. It’s why the Windsor agreement was rushed through.
What the US legislators would think and do something to also be v mindful of.
Beholds the supporters to go and understand it more. Trouble is the macho-twaddle on the ECHR way out ahead of proper understanding and calm thinking.
Interesting that you got all those downvotes when you seem to be answering the question asked in a neutral, factual way. Those ‘human rights’ eh – who needs ’em?
We already have them in place. We don’t need to be overruled by other non-removable Europeans.
Exactly. The idea that we’d suddenly become a ‘Human Rights-free zone’ should we depart the ECHR is just laughable. The British have been implementing basic (and extended) human rights since the Magna Carta and Habeas Corpus.
Did human rights not exist in the UK then, when the UK was not part of the ECHR?
Any withdrawal (from treaty documentation) would only really need to be seen to be replaced with something in our own legislation. As in the 1940’s, nearly all equivalent U.K. legislation is already in place. We even have our own self-loving sanctimonious judges in place – ready to indulge in “interpretive overreach”.
What is the relevance of Russia and Belarus? We would also be alongside many nation noted for their good record in human rights; but, again, so what?
Russia were in and had judges on the ECHR until 2 years ago, deciding on UK law.
The writer has not provided one reason for staying in the ECHR. Is there one?
What would replace it? What would be the framework, cost, timescale etc involved be? Sounds like a mammoth task.
How about nothing?
It’s already there. Happy to be corrected if you have an example where the EHCR have added something we haven’t – or wouldn’t.
Even if the Tories got Britain out of the ECHR, past form suggests they’d use it to increase immigration. Just as they used Brexit to then further increase immigration.
The ECHR appears to effectively place power over British migrant immigration policy in the hands of judges in Strasbourg. Leaving it is necessary, therefore, if Britain is to regain control of its borders. If it means ruffling feathers in Europe, so be it.
If it means placing those feathers where the “sun don’t shine” then so be it.
Other European countries seem to manage OK within ECHR: Italy has off-shored camps for asylum seekers to Albania, Poland is about to suspend asylum processing, Germany has “closed” its borders and Denmark has a zero asylum seekers policy, to give but four examples.
But it would never be possible for a UK government to do any of these things because of the attitudes of our civil service and judiciary. So leaving the ECHR is a necessary (but not sufficient) step towards border control.
There is uno need to leave the ECHR. The Treaty does not bestow supranational powers on the ECHR; the judges invented protocols to give themselves the powers they think they deserved. All that the British government needs to do is to state that powers are extended by Treaty by the signatory powers. The sovereign state of the UK never gave Treaty powers to the ECHR. So its advice is interesting, not binding at all. What the British sovereign does have is a duty to ensure law and order and the security of its subjects. Therefore all illegal immigrants will be instantaneously returned to their countries of origin; if their papers have been burn then the British government will determine what their countries of origin are and return them there tomorrow. No appeal. If the gangs keep sending boats across the Channel, the British sovereign will state that they will be sunk, the people fished out of the sea, and deposited somewhere on the French coast.
Matrix chambers will object. Their denizens will appeal in this court and that. But the British state must say that international law is made and enforced by sovereign states, not by lawyers. The rule of law is NOT the rule of lawyers.
Thanks for the detail Jonathan.
Interesting and informative. You are clarifying that the ECHR does not in and of itself have to override sovereign national laws – it’s the UK legal ecosystem that is choosing to grant primacy to ECHR guidance and then subsuming that guidance into UK law – in effect interpretation taken too far. If that’s the case, the problem is more serious because it’s cultural within the ecosystem. Any individual government can direct the judiciary about how it wants a given set of laws interpreted, but that won’t stick if it goes against the grain for large numbers within the system who don’t buy into that – and it’s hardly possible to replace large tranches of the upper echelons of the judiciary and hope for different results because the layer immediately below from which you recruit the new cadre will likely have the same mindset. Cultural mindsets would take years to shift.
Also the question that arises for me is, if the ECHR is providing (likely superfluous) guidance to sovereign nations on human rights, what exactly is it’s purpose, other than to create makework for yet more lawyers?
Jenrick’s position on the ECHR is one thing (and one which I entirely support) but even more significant is his apparent determination to set a low cap on legal immigration, something that is urgently needed if England is to have half a chance of remaining recognisably English (at least in most places).
“Apparent determination” – the Tories have had this policy before (in 2010, 2015, 2017) and each time immigration went up! So why should anyone believe Jenrick? Because – I believe and hope – he actually means it; on his resignation from the Home Office he wrote that the Conservative Party must “repent” its failure over immigration. “Repent” – a strong word which, I believe, indicates sincerity.
Contrast Badenoch. She refuses to embrace the idea of a cap because, she says, they had a cap (in 2010, 2015, 2017!) and it didn’t work. That’s because it wasn’t a cap but a manifesto pledge! Such knowing evasion on such a crucial matter disqualifies her. But for some reason which baffles me, she’ll still win the members vote.
Mr Jenrick has become very noisy on this subject in the last few weeks, compared to his previous silence. Not surprising, he thinks it’s a vote winner. As it is, and should be.
But the trap is he is not going to have to do anything about it for the next five years or so. So it is all smoke and mirrors in reality.
The European Convention on Human Rights is written, both into the Good Friday Agreement, and into the United Kingdom’s trade agreement with the European Union, so we are never going to withdraw from it, and that will always just be that. No more than 50 Members of the last Parliament would have voted to do so, and there will never again be anything approaching that many. But I cannot understand why those who rejoice in that do so.
The ECHR did not prevent 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 did the ECHR prevent the enactment of the Covert Human Intelligence Sources (Criminal Conduct) Act, or of the Overseas Operations (Service Personnel and Veterans) Act, or of the Nationality and Borders Act, or of the Elections Act, or of the Strikes (Minimum Service Levels) Act, or of the National Security Act, or of the Online Safety Act, or of the Hate Crime and Public Order (Scotland) Act, or of the Police, Crime, Sentencing and Courts Act. No one seriously imagines that the Labour Government will repeal most of those, either. Nor did the then Conservative Government make a section 35 order to prevent Royal Assent of the Hate Crime and Public Order (Scotland) Bill, which banned nothing for which people were not already being arrested in England, as they continue to be, complete with records of non-crime hate incidents that then show up on things like DBS checks.
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 did 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 div > p:nth-of-type(11) > a”>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 Reichsbürger 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?
To me, what you are saying re the ECHR specifically implies that our politicians have been engaged for a long time in creating bad quality treaties (and following on from that, bad quality law) – that effectively lock the nation state into mechanisms which cannot be escaped from without lacerating costs when the population of the nation decides it wants to go in a different direction, because conditions and circumstances have changed. A stasis-making machine. Moreover, this has been done by said politicians by seemingly deliberately obscuring the visibility of long term consequences from the population on whose behalf they sign up to such mechanisms.
This might sound strong, but I would say such behaviour is borderline treasonous.