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  1. The Staggers
7 February 2023

Sunak wouldn’t dare leave the ECHR

It’s not just a bad idea, it’s nonsensical and improbable too.

By Matthew Scott

As this unhappy and exhausted Conservative government heads for probable electoral oblivion it is hardly surprising that some of its senior figures are looking for something that might win back disaffected voters. One of those things is an attack on the European Convention on Human Rights (ECHR).

The Home Secretary, Suella Braverman, has explicitly called for Britain to leave it. The Justice Secretary, Dominic Raab, has drifted towards a similar position, and now the Prime Minister himself has let it be known that he too is contemplating withdrawal.

As a matter of international law, leaving appears deceptively straightforward. Article 58 of the Convention allows member states to leave on six months notice, a provision that Russia triggered in March of last year – understandably, since it has long abandoned any pretence of upholding human rights.

As a matter of domestic law it is more complicated. One legacy of the UK’s litigation over the use of Article 50 to leave the EU, is that notice to leave the Convention would almost certainly require primary legislation – at the very least, giving notice without legislation would guarantee bitter litigation that the government would likely lose. 

Even with a united parliamentary party, the passage of a ECHR Withdrawal Act before the next election would be virtually impossible. Withdrawal formed no part of the Conservatives’ 2019 manifesto so the House of Lords could – and very likely would – use its delaying powers to the utmost. 

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But the Conservative Party is far from united on the issue. The former justice secretary Robert Buckland believes leaving the ECHR would be “undesirable”, and the current chair of the Justice Committee, the Tory Robert Neill, has said it would be “unbelievable” for a Conservative government to do so. Others will share the views of the Thurrock MP Jackie Doyle-Price, who witheringly described Sunak’s witterings on the subject as “willy-waving” in a WhatsApp message leaked to Politico.

It is hard to disagree with Doyle-Price’s characterisation of a policy that is simultaneously attention-grabbing and stupid, especially when the danger of a continent-wide European war is greater than at any time since the Convention came into effect in 1953. Is joining Europe’s two gangster states – Russia and Belarus – outside the ECHR really a price worth paying in order to ease the deportation of a few thousand asylum seekers to Rwanda?

Leaving the Convention would create further risks to the Union with Northern Ireland, which is already straining under the pressures of Brexit. The Good Friday Agreement, for example, guarantees that Convention rights will be enforceable in Northern Irish courts: good luck with coming up with a replacement acceptable to both communities.

And what – if anything – would come after withdrawal? Would Convention rights simply disappear from the law, or would they be replaced by a “British Bill of Rights”, one that would be bitterly resented by three of the four countries in the United Kingdom? What of the body of law that has developed since the 1998 Human Rights Act gave direct effect to the Convention in UK law? Would we have to turn the legal clock back to 1998, or perhaps even to 1953? Legal and constitutional chaos would ensue.

Fortunately, no matter what Sunak waves to assert his macho credentials, it is unlikely to happen in the foreseeable future.

[See also: Conservatives are losing confidence in Rishi Sunak]

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