6th February 2023
Here we go, again.
This was a news report in yesterday’s Sunday Times:
The content of the report itself does not quite amount to the “pledge” of the headline – but the content of the report is not without interest:
“The PM has been clear he wants to introduce legislation that meets our international obligations,” a source familiar with Sunak’s thinking said. “This bill will go as far as possible within international law. We are pushing the boundaries of what is legally possible, while staying within the ECHR. And we are confident that when it is tested in the courts, we will win.
“But if this legislation gets onto the statute book and is found to be lawful by our domestic courts, but it is still being held up in Strasbourg, then we know the problem is not our legislation or our courts.
“If that’s the case, then of course he will be willing to reconsider whether being part of the ECHR is in the UK’s long-term interests.”
Senior figures say the prime minister is prepared to deploy the nuclear option before the general election if the European court strikes down his plans. But that would put the government on a collision course with MPs and particularly the House of Lords, and it is highly unlikely it would happen before the election due in 2024.
The Tories would then put withdrawal from the ECHR at the heart of their manifesto, drawing a sharp dividing line between the Conservatives and Labour. The plan is proof, allies say, that Sunak shares the hardline instincts of the Tory right on immigration.
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What can we make of this?
Perhaps this is just a weekend frolic: a political source contriving something so as to get the weekend press coverage they want at the end of another difficult week.
If so, this would not be first weekend this has happened, and it probably will not be the last.
And in any case, the last part of the news report quoted is probably political bravado: the sound of an anonymous source getting increasingly excited by what they are imparting.
But the first part looks to me as if it may be tied to the circulation of internal government legal advice.
So with my former government lawyer hat on, let us look what could be the situation:
1. The government has a plan to deal with the boats and this plan requires legislation.
2. The government has obtained legal advice on that plan and perhaps even on the wording of the draft legislation. This advice may be internal advice from the government legal service, and/or it could have been obtained from external specialist counsel.
3. That legal advice is that both the plan and the draft legislation may be compliant with the Human Rights Act 1998 which gives effect to the ECHR in domestic law and, if so, they will be upheld in the domestic courts.
4. However, that legal advice may also include the proviso that the ultimate arbiter of the ECHR, the European Court of Human Rights in Strasbourg may take a different view – either on a final or on an interim basis.
5. A minister – perhaps the Prime Minister – has decided to proceed with the plan and the legislation on the basis of this legal advice.
If the above analysis is (roughly) correct then the politics of the situation may unfold as follows.
First, if the domestic courts and/or the Strasbourg court hold that the plan and/or the legislation is/are not compliant with the ECHR then it is not the government’s fault but that of the judges and the lawyers.
Second, if the the plan and the legislation is/held to be compliant then the government had won its showdown with the judges and the lawyers – by threatening to leave the ECHR the government has got the courts to cower.
In either scenario, the government will be beyond blame.
The politics of the situation would be, if the above is correct, a win-win for the government.
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But.
If the government does lose, and the courts hold that the plan and/or the legislation is/are held not to be compliant with the ECHR, what about the threat to leave the ECHR?
This is the bit which is not really thought-through.
As this blog has set out previously, the Good Friday Agreement requires the ECHR to be enforceable directly in the courts of Northern Ireland.
(The Human Rights Act 1998 currently does this for Northern Ireland, as well as for the rest of the United Kingdom – but it does not matter what legislation does it, as long as it is done.)
There is no obvious way that the ECHR can be enforceable directly in the courts of Northern Ireland if the United Kingdom is not a party to the ECHR.
Even attempts to carve out the jurisdiction of Northern Ireland from the rest of the United Kingdom – creating yet another legal(istic) border down the Irish Sea – are unlikely to work.
This is because Article 1 of the ECHR requires its signatories to secure to everyone within their jurisdictions the rights and freedoms set out in the ECHR – and so the United Kingdom cannot be a signatory for some parts of the United Kingdom and not others (emphasis added).
And unless the United Kingdom is the signatory, the ECHR cannot have legal effect so as to be directly enforceable in the courts of Northern Ireland.
The alternative possibility that Ireland still being a signatory to the ECHR could be used as the legal basis for giving direct effect to the ECHR in the courts of Northern Ireland would presumably be a non-starter with the unionist community.
In essence: if the United Kingdom leaves the ECHR then it would seem the United Kingdom will be in breach of express provisions in the Good Friday Agreement.
And all this would be in addition to the reaction of the United States of America to a breach of the Good Friday Agreement – especially as long as Joseph Biden is President.
It is impossible to see how withdrawal could be done without upset.
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Of course, some would say it is a pity that it is only the Good Friday Agreement that would prevent the United Kingdom government leaving the ECHR.
Surely there are better arguments against leaving than that?
But even if there are better normative points to make on behalf of the ECHR, the Good Friday Agreement would be a formidable structural obstacle to withdrawal.
And changing the Good Friday Agreement would probably need the consent of at least the Northern Irish in a referendum, if not that of the voters of Ireland too.
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And it appears that current Conservative backbenchers are underwhelmed by this threat, with one correctly using the technical legal term “willy waving”.
As Politico reports:
Enough of the willy waving: Playbook has seen texts exchanged in the “Home Group” of Tory MPs in response to the story over the weekend. Replying to a message from Jonathan Gullis, who had shared it approvingly, Doyle-Price said that “willy waving about leaving the ECHR will do zilch” and declared: “I have been a member of the Conservative Party for 36 years. This group leaves me cold. Upholding the law should never be a matter for debate for a Conservative. Our Home Office is crap. If the government wants to have a phone[y] war over the ECHR instead of sorting itself out it can do it without me.”
Everyone’s a critic: There was more backlash in the group from David Simmonds, who said that “the ECHR is not the issue here. By pretending it is, we are setting ourselves up for a fall as a UK court will take the same line,” and called for reform of the asylum system. Alicia Kearns agreed that “it’s exactly as David sets it out. We cannot tackle asylum claims when we haven’t given ourselves the legal grounding on coming here illegally.” Anna Firth said that while she was happy to be proven wrong, she thought Doyle-Price was “bang on the money” about the ECHR “rabbit hole.”
[…]
On the record: Bob Neill told the Financial Times that it would be “unbelievable” for the U.K. to put itself “in the same company as Russia and Belarus” by leaving the ECHR, while former justice sec Robert Buckland calls it “an undesirable state of affairs.”
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What seems to have happened is that that a political castle was improvised this weekend on the mound of what probably is some fairly unexceptional legal advice about whether the government’s latest plan and draft legislation would survive legal challenge at home and in Strasbourg.
On the basis of that legal advice, politicians and their advisers appear to have rapidly gamed certain political tactics, free from any thought about the structural legal problems, as well as without realising the lack of backbench support.
This is not to say that the current governing party is not capable of putting departure from the ECHR in its manifesto and, if they are again returned, seeking to put that commitment into effect.
(Withdrawal from the ECHR is unlikely before the next general election, as it was not in the 2019 Conservative manifesto, and there would be not enough time to force it through the House of Lords.)
In this age of Brexit and Trump, no such political move can be discounted.
But it would not be easy.
And it would require considerably more thought and planning than the current anonymous briefings indicate has taken place.
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And it would require considerably more thought and planning than the current …………….
government has shown itself capable of …………
ho hum.
I may be wrong, but it seems to me that the government has calculated that the only possible way that it might win the next election is by ratcheting up hostilities with the EU. By issuing threats to the ECHR, refugees, the GFA, the TCA and the NIP, all of which are interlinked, it hopes to wind up the electorate in a way almost identical to the manner in which it wound them up over Brexit. Essentially, it hopes to ferment the same degree of hatred directed towards foreigners, immigrants, foreign courts, unelected foreign functionaries, the populations of those countries that the UK once helped to free from nazi occupation becoming more prosperous than the UK etc. etc.
If I’m right, it’s a strategy directed solely to retaining power by sacrificing the vast majority of the UK population.
I believe you *are* right: a bonfire of the sanities…
I’m almost never right
It never ceases to amaze me how catastrophically stupid and ill-informed most Tory MPs are, post Brexit. Willing to clutch at any political straw offered no matter how ineffective it is or how damaging the immediate consequences.
They could stop the boats tomorrow by opening legal routes for asylum, but that’s politically unacceptable to the rabid right. What a shower.
Thank you, David. Could I just get your views on Art 692(2) of the TCA- if I understand it correctly, it appears that UK withdrawal from the ECHR actually brings the TCA to a rather abrupt halt as well. Is this correct?
It only brings “this Part”, i.e. Part 3 (law enforcement and judicial cooperation in criminal matters), to an end. Clearly not good, but unlikely to be enough to dissuade a doggedly determined government from leaving the ECHR.
Unfettered sovereignty or tariffs ?
This is a call for the Uk alone to make.
Making decisions means accepting responsibility.
What we are seeing now is very similar to the Russians’ strategy in Ukraine. ‘Destroy anything of value as you leave.!’ The government is aiming to repeal EU-derived law, often the product of thousands of hours of UK toil, so as to make it more difficult to form a future coherent relationship with the EU and much more difficult to rejoin. Threatening to leave the ECHR is both part of this inane act but also a means of distracting from the obvious profound incompetence and inhumanity of the UK’s immigration management. This is, really, another symptom of the poor management of Justice and the Law in general, as the respect for the Law as a pillar of our civilisation has been eroded by the government and its funders. The appears to be no constraint on them that they cannot ignore, and no protest on our part that they cannot try to make unlawful.
The whole point of the European Convention on Human Rights is to inhibit politicians and public administrators from attempting to infringe fundamental rights and freedoms. A democratic country that respects everyone’s civil liberties should have no problem with the ECHR.
There is a nasty authoritarian tenor to these arguments that politicians supported by a popular majority should be empowered to oppress disliked minorities, or deny such people respect for their humanity as if they were somehow less than human.
Even though I appreciate it’s just an unfortunate turn of phrase, perhaps ‘deploying the nuclear option’ of threatening to join Russia and Belarus outside the ECHR might not be a very appealing option to voters at a General Election in 2023 or 2024.
Especially with increasingly ‘Bregretful’ voters noticing that something has gone very seriously wrong with the UK, and noticing which party is to blame for that.
And that’s before one even considers the importance of the GFA issue rightly outlined in this piece.
It’s performative cruelty taken to an illogical conclusion for a diminishing band of true believers, and a weak PM being forced to dance to the ERG tune. No wonder quite a few Tories are choosing to jump ship ahead of the looming iceberg heading their way (having already felt the damage that even mini-icebergs can cause).
Stepping back from the detail it seems to me extraordinary that any UK Government would not be embarrassed about even considering withdrawal from the ECHR. It is shameful and shows just how degraded we have become in the past decade.
“We are pushing the boundaries of what is legally possible, while staying within the ECHR. And we are confident that when it is tested in the courts, we will win.”
And then…
“But if this legislation gets onto the statute book and is found to be lawful by our domestic courts, but it is still being held up in Strasbourg, then we know the problem is not our legislation or our courts.
“If that’s the case, then of course he will be willing to reconsider whether being part of the ECHR is in the UK’s long-term interests.”
That reads to me as saying we won’t leave the ECHR simply because the domestic courts rule that the legislation is incompatible, though it does cast aspersions in advance on the wisdom of the courts. But the suggestion is that a ruling by the domestic courts that the law is incompatible would set in motion an iterative approach until we get it “right”.
The reasoning in the penultimate quoted paragraph is wrong. If the domestic courts do uphold the proposed statute against an HR challenge but the ECtHR (the court above) does not, that means either that the domestic courts got it wrong in testing the statute against the convention or the HRA failed to properly incorporate the convention.
I don’t doubt the reasoning is wrong. I’m only talking about the expressed intent.
It is worth remembering the specific NI circumstances around the ECHR.
In the Hooded Men case the ECHR (stopping short of using the word torture) banned the use of techniques like sleep deprivation, stretch positions, hooding, white noise regimes and fake executions.
(These techniques are all listed in a chapter of Solzenitzen’s The Gulag Archipeligo called The 10 Tortures Of The Gulag, draw your own conclusions).
A British Withdrawal from the ECHR would burn the Good Friday Agreement to the ground.