Sunak may have no option but to leave the ECHR

  • 16th September 2023
Sunak may have no option but to leave the ECHR

Sir Simon Clarke

via The Telegraph

We are more than capable of taking back control from a convention that has changed beyond recognition

Our ability to exercise democratic self-government is once again in the spotlight. The Prime Minister’s principal non-economic pledge is, rightly, to “stop the boats”, and end the evil trade in people- trafficking across the English Channel. Parliament has already voted for the Illegal Migration Act. This provides the statutory foundation for the Rwanda plan to remove the basis for the trade, by making it clear that people will not get to remain in the UK if they enter the country illegally. 

But as we stand today, the Government is rendered powerless to act – and the European Convention on Human Rights is to blame. 

In a split decision in June, the Court of Appeal blocked flights to Rwanda from proceeding on human rights grounds, setting up a profoundly significant hearing in the Supreme Court next month. If the Supreme Court sides with the Court of Appeal, the Government will need to make a hugely consequential decision. 

Labour’s proposal seemingly to accept thousands more migrants already in safe EU countries as part of a quota deal can be dismissed in a heartbeat. So in the event of an adverse ruling on Rwanda, ministers would need either to accept defeat on our flagship policy, or reform our human rights settlement, founded upon our membership of the ECHR. 

In that scenario, the Prime Minister’s choice should be the latter. Britain has struggled for years to square the circle of how to make sense of the often baffling decisions of the Strasbourg court, which are given direct effect in English law by Tony Blair’s Human Rights Act. Recently the former defence secretary Ben Wallace told The Telegraph how the ECHR has prevented the UK from apprehending terrorists plotting mayhem overseas. 

Readers with longer memories will recall Strasbourg insisting upon prisoner voting, and David Cameron’s attempt to restrain the European Court of Human Rights by the Brighton Declaration of 2012, calling for greater respect for national parliaments. Yet still the rights creep goes on, and increasingly there is a sense that something has to give. Last week, no less a figure than the former Supreme Court Justice, Lord Sumption, said that he believes the time has come for the UK to leave the ECHR, saying: “I’ve come rather reluctantly and rather slowly to that conclusion because I hoped for a number of years that the Strasbourg court would become more sensitive to the implications of its decisions to impact on democratic societies like ours. There is no sign of that happening and so reluctantly I think we should leave.” 

The seeds of the problem were sown in the convention’s inception. Even when it was first debated, there were many who had their doubts. Clement Attlee’s lord chancellor, William Jowitt, told colleagues in a Cabinet memorandum: “I suppose it is inevitable that for political reasons… we must accept this draft convention. At the same time, I feel bound to state that from the point of view of administration of law, I regard this necessity as an unqualified misfortune.” 

Perhaps the most problematic aspect of the convention is that it is deemed a “living instrument” by the Strasbourg court, capable of constant evolution. It is this that has led to the concept of human rights expanding beyond all recognition from the world of 1945. The victorious powers in Europe wanted to forestall a repeat of the horrors of Nazism. Churchill’s generation would never have imagined that human rights law could be so extended as to render us unable to police our own borders.

If in the weeks ahead, it becomes clear that the European Convention on Human Rights will not allow us to do this, then it is time to leave the ECHR and introduce a British Bill of Rights, extensive work on which has already been undertaken. 

We should, in the very words of the Human Rights Act 1998, “bring rights home”. 

  • Sir Simon Clarke is the Conservative MP for Middlesbrough South and East Cleveland 

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