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17 August 2023

There is no good argument for leaving the ECHR

The UK needs to be seen as a reliable upholder of international standards rather than as a rogue state.

By David Gauke

Unsurprisingly, there has been much speculation of late as to the future direction of the Conservative Party. An election defeat looks highly likely, which will almost certainly create a leadership vacancy. There is little ideological cohesion to the party, which means that it could go in a number of directions. And since the scale of any defeat is uncertain (a near-wipeout or something much narrower), it is unclear who will be left in the parliamentary party to pick up the pieces.

One person who is likely to be influential is Nick Timothy. Timothy was a long-standing and very effective special adviser to Theresa May when she was home secretary before becoming one of her chiefs of staff at No 10. In that role, he was – for a year – probably the most powerful man in the country. He sought to implement his vision for the Conservative Party and the country and, in doing so, made plenty of enemies among members of the cabinet. When the Conservative majority was lost in the 2017 general election, Timothy took responsibility and resigned.

But that was not the end of him. He gained a column in the Daily Telegraph and at the end of last month was selected as the Tory candidate for West Suffolk (a seat currently held by Matt Hancock), where the Conservatives won a majority of 23,194 at the last general election. Short of a Canadian-style implosion, Timothy will be a Conservative MP at some point next year. Given his experience, intellect and forcefulness, he will be an influential one.

In this context, his most recent Telegraph column has attracted much attention. It contains a big policy idea and a technical and legal proposal as to how it should be implemented.

The big idea – and it is not a novel one – is that the UK should leave the European Convention on Human Rights (ECHR). The reason for this, Timothy argues, is that it is preventing the UK from controlling its borders. International treaties and human rights laws, he complains, mean that “once on our shores, we cannot just put migrants back out to the sea”, implying that he would be in favour of doing just that given the chance. Ending illegal immigration is what the public demands and leaving the ECHR is vital to delivering that, he argues.

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Timothy does acknowledge a problem in withdrawal, which is the Good Friday Agreement. He accepts that the agreement lists the ECHR as a safeguard and requires its incorporation into Northern Irish law. He has, however, solutions to this. We could have a domestic law that incorporates each of the articles of the ECHR but with the UK parliament able to qualify the ECHR rights and not be required to defer to the European Court of Human Rights in Strasbourg, which interprets the ECHR. But even Timothy is unconvinced by this argument in the context of Northern Ireland and he suggests an alternative approach – the ECHR might continue to apply in Northern Ireland “in so far as it applies to the peace process and excluding foreign nationals”.

[See also: Rishi Sunak wouldn’t dare leave the ECHR]

The robustness of his legal arguments has been questioned. Professor Steve Peers of Royal Holloway, for example, has made the case that compliance with the ECHR necessarily involves the Strasbourg Court (it is hard to see how it could be otherwise) and that the idea that it applied to the “peace process” but not foreign nationals (presumably including Irish citizens) is “confused”.

The wider point here is that this is not just a legal matter but also a diplomatic one. Even if Timothy’s legal proposal is workable (and that would be a bold assumption), it is very hard to see the wider international community – the EU and the US, in particular – agreeing. Both would consider it a threat to the Northern Ireland peace process, just as both considered the prospect of a hard border on the island of Ireland irresponsible.

Timothy mentions that withdrawing from the ECHR raises issues with the UK-EU Trade and Cooperation Agreement – the EU could end criminal-justice cooperation. But, he argues, this would be “needlessly destructive”. Again, this underestimates how the UK’s reputation would be damaged in these circumstances. (In Europe, only Russia and Belarus are not parties to the ECHR.)

The whole debate starts to take on a very familiar look. Parts of the British right prioritise immigration control and the principle that sovereignty lies with the British people alone, unfettered by international obligations.

Practical problems are pointed out (“this undermines the Northern Ireland peace process”, “the EU will not just go along with it”) but are dismissed as inconsequential and the protestations of an out-of-touch elite. Dismissed, that is, until reality bites.

Whatever the political attractions, leaving the ECHR is not a good policy. The UK needs to rebuild its reputation as a reliable upholder of international standards rather than a country vulnerable to populist spasms. In particular, for economic reasons we need to rebuild our relationship with the EU, not find new areas of division. Withdrawing from the ECHR would set us back considerably on both fronts. Even as a political project, it may well fail. Brexit is now widely regretted by most voters and the days when electoral success could be delivered by promising to slash immigration and restore sovereignty have surely passed. The public has seen this movie before. That is not to say, however, that some Tories – like Timothy – won’t be willing to give it a go.

[See also: The new politics of migration]

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