It ought to be obvious to anybody who wishes to reform this country’s relationship with the European Convention on Human Rights (ECHR) that there could be few things less helpful to their cause than the Conservatives fighting the next election on a platform of wholesale withdrawal.
For starters, such a maximalist option creates the largest possible number of difficult questions for campaigners, to which it is very unlikely that this Government is going to produce compelling answers. It also smacks of the sort of big-bang policy one only sees from ongoing governments that don’t expect to have to deliver it.
By the same token, it would be a boon to the ECHR’s defenders. In the event that the Conservatives were routed at the election, they would surely claim that the British people had resoundingly rejected the proposition of leaving the Convention.
That wouldn’t necessarily be the case, of course. Elections are fought on a huge range of issues. But they would do it nonetheless, and it would make it more difficult for the Tories to revisit the issue in the near-term.
Yet that doesn’t mean nothing can be done. There is a more intelligent way to go about reforming our relationship with the ECHR, one which doesn’t involve (and might never require) leaving outright but which could make a substantial difference to how much it restricts democratic government – and leaves the awkward questions for the other side.
If Rishi Sunak does want to make the Convention an election issue, then instead of a desperate all-out attack he should instead propose a much narrower challenge. For example, restricting the grounds on which the courts can overturn deportation orders for individuals convicted of a specific category of crime, such as sexual offenses.
That proposal would directly address absurd cases such as the one recently featured in a Sky News report about the scale at which the courts are overruling the Home Office when it comes to sending back foreign criminals.
A man was convicted of “outraging public decency and exposure” in 2017 and placed on the Sex Offenders Register; multiple doctors testified that he “continues to act inappropriately towards females”… but his lawyers managed to secure him refugee status, on the basis that his “risky behaviours” might lead to “ill-treatment” in Afghanistan!
Perhaps it would – but that ought to be his problem. The UK is not responsible for policing the entire world, and nor should it be obliged to play host forever to those who abuse our hospitality by persistently breaking the law. It is absurd that international agreements drawn up in the aftermath of World War Two to ensure better protection for people facing political prosecution have ended up mutating into this.
Happily, our constitution allows for a much more granular approach to reforming our relationship with international law than outright withdrawal. The Human Rights Act explicitly confirms that Parliament can legislate contrary to the Convention if it chooses to, and the same is true of other commitments. To date, the only battle any British government has chosen to fight on such grounds has been prisoner votes, but that can change.
One advantage of this approach is that it would force the Government’s opponents onto unfavourable ground – away from broad questions of principle, where defenders of the ECHR tend to be happiest, and onto specifics, where even its supporters increasingly realise that Strasbourg is straying into dangerous territory.
Were ministers to propose a law that explicitly prevented the courts from staying deportations on Convention grounds in the case of, say, rapists, how hard would Labour really want to oppose that? And were the Government to actually pass it, it seems quite unlikely that a Starmer Government would repeal it.
More level-headed supporters of the UK’s membership of the Convention might even welcome such a policy; sanding down such rough edges through national law is certainly the most practical method available by which they might “save the ECHR from itself”, as Robert Shrimsley recently put it.
However, one suspects that just as with the European Union, too many will be ideologically or temperamentally committed to a maximalist, all-or-nothing approach to Convention membership.
If so, and that does end up being the battle that needs to be fought, it behoves those who wish to reform our relationship with the ECHR to make sure its defenders have to fight on the hardest cases they’re prepared to defend.
The post The right and wrong way for the Tories to campaign on the ECHR at the general election appeared first on Conservative Home.
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Author: Henry Hill
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