Will the Tory party figure out its ECHR position?

Kemi Badenoch, like other Tory leaders before her, is trying to work out how to unite her MPs around the idea of leaving the European Convention of Human Rights (ECHR).

After launching a commission exploring the policy, led by shadow attorney general Lord David Wolfson, Badenoch was bullish about her approach to its conclusions in an interview with the Daily Telegraph this time last month: “If we make that decision that we have to leave the ECHR, then that will be a condition of standing for Parliament under the Tory banner.

“I’m afraid anybody who disagrees with that policy cannot and should not stand for Parliament as a Conservative MP.”

The work of Lord Wolfson will be guided by five “common-sense tests”, looking at deportation, veterans, fairness, justice and prosperity.

But a number of people tell me that the policy commission, which is set to report back to the Tory leader in early September (giving her time to make a political judgement ahead of announcing the position at conference), was launched with an almost predetermined outcome – and Lord Wolfson will be providing his “best suggestions” to make that happen.

One Tory source tells me: “His mindset is absolutely that he is Kemi’s lawyer, and he’s looking at this from her perspective of what she wants the outcome to be.”

Another, with understanding of the ongoing work, says: “I think it would be fair to say it is a foregone conclusion and this is about working out options for withdrawal. It would be extraordinary for Kemi to come out at conference and say anything else, especially as she’s already made clear it is ‘likely’ that we will need to leave.

“Imagine a world in which you turn around at the end of this to say, ‘Oh, actually we are committed to not leaving the ECHR’, and you’re then throwing Rob Jenrick out the party.”

It wouldn’t just be Jenrick. The make-up of the parliamentary party has arguably shifted towards the right since the last election, and at a shadow cabinet meeting before Badenoch announced the policy commission, she went around the room canvassing opinions – the majority of which, I understand, were supportive of the option of leaving. Shadow defence secretary James Cartlidge, for example, has openly shifted his position from concerns that the only major European nation outside of the ECHR was Russia to thinking it “hampers our ability to meet the threat from that very same nation”.

Although when it got to asking Jenrick for his views, Badenoch joked: “Well we already heard what you think about the ECHR about 500 times during the leadership campaign, but seeing as we’ve heard from everyone else, what are your thoughts?” It prompted a few awkward grimaces around the table.

But those who think the party should support leaving are resolute in their views, as a shadow minister tells me: “A lot of those who remained after the election have spent time in the Home Office and were introduced to the issue there so have become radicalised on this.

“It is basically an anti-citizenship measure where you are putting rights, with absurdly far reaching claims, of people who shouldn’t even be here above the responsibility we have to our citizens.”

Put quite plainly, they add: “It is bullshit.”

Not everyone is happy with the party’s positioning on the issue, however, nor Badenoch’s attempts at heavy handed tactics following her warning shot to would-be rebels.

“Good luck with that,” one MP tells me of the Tory leader wanting all candidates to be signed up to the eventual policy, “it’s not smart to try to hold people ransom when not in a strong position yourself”.

They add: “I wouldn’t be surprised if some letters eventually go in because of that.”

Another MP who would be against the potential policy brands her comments to The Telegraph as “pathetic, student politics”, saying: “What do people who don’t want to leave the ECHR do? They sign up to her condition and ignore it later. 

“They aren’t worrying about signing up to something at the demand of a leader who won’t be leading us into the next election.”

Polling last year had only a third of Tory members supporting a move to leave the ECHR – and now in our own ConHome polling, half of members have indicated they should be having more of a role in the redevelopment of Conservative Party policy, so perhaps the party isn’t entirely sold.

“I thought we were meant to still be a broad church,” one MP from the new intake tells me, “I’m not a fan of mandating something like this when there are perfectly reasonable critiques”.

“Those who want to leave should be able to convince people rather than enforce it.”

The party whips were calling around their MPs to canvas views on the ECHR policy commission – and met some of this resistance, with certain MPs already putting clear requirements on any support for leaving. It is not just those seen as ‘Tory wets’ who are hesitant but figures including David Davis, who has long advocated for “necessary and possible” reform.

The only thing is it may not make a difference when it comes to the options put forward by the commission.

“Obviously some of the MPs are making their voices and their positions clear, and I think that creates a bit of tension in the party,” one Tory source tells me, “but it doesn’t and it wouldn’t impact the set of advice that Lord Wolfson is going to present”.

“It’s a one way trade. The political question is going to be for Kemi.”

Either way, membership is clearly feeling frustration at the length of time it is taking to come to decisions on policy, with almost two thirds saying the party should be moving faster.

MPs have yet to be lobbied by members of shadow cabinet or LOTO on the issue, with some surprised that there hasn’t been any efforts to lay the groundwork: “She might make threats in an interview to The Telegraph but there has been zero attempt to win any of us over in the meantime.”

One member of the shadow cabinet defends Badenoch saying she was ready to block candidates from standing for the party at a future election if they refused to support her on the issue.

“Imagine a hypothetical world in which we end up with a working government majority of five,” they say, “what happens if we have 20 rebels in our ranks and a flagship policy is destroyed?”

They cast back to when Boris Johnson removed the whip from 21 rebels, only eventually letting ten back into the party, after they rebelled against him in a bid to prevent a no-deal Brexit: “It has been done before and I wouldn’t rule it out again.”

One sympathetic MP tells me that any potential rebels are naive to the arguments: “The people uncomfortable with the idea of leaving the ECHR are people who don’t really understand the issue.”

Similar to Lord Peter Lilley’s report for the Centre for Policy Studies, which has been read with much intrigue within the party (alongside works from those like Richard Ekins and Conor Casey), they argue that withdrawal would not breach the Good Friday Agreement – which requires ECHR rights to be in Northern Ireland law, not UK-wide law – or our trade agreement with the EU.

“If we weren’t in it now, would we really join it?” the MP asks – Canada, Australia and New Zealand seem to be doing okay. “These things cannot stop this country from having a functioning immigration system.”

The same shadow cabinet minister similarly makes the argument that the current process allows for “almost indefinite appeals” through various articles: “That cannot continue and we need to streamline that down massively.”

The sympathetic MP adds: “The courts shouldn’t be involved in immigration appeals at all. The state should decide and if there aren’t appeals that is it.”

Home Office figures show the proportion of asylum claims granted at first instance has leapt from 25 per cent in 2010 to 67 per cent in 2023. Of the 42,000 asylum seekers awaiting appeal outcomes, around 40 per cent of those appeals cite human rights.

Those who think the party should back leaving the ECHR say reform “is impossible” and that is why it is the only option left. Those who aren’t quite convinced want to see “a clear commitment and plan for human rights protection” outside the system.

A shift is happening in attitudes when even The Economist is writing “scrap the asylum system and build something better” on its cover. But it is not new to the Tories.

It was in 2012, after the ECHR blocked the deportation to Jordan of Abu Qatada, that David Cameron as prime minister said: “The problem today is that you can end up with someone who has no right to live in your country, who you are convinced – and have good reason to be convinced – means to do your country harm. And yet there are circumstances in which you cannot try them, you cannot detain them and you cannot deport them.

“So having put in place every possible safeguard to ensure that ECHR rights are not violated, we still cannot fulfil our duty to our law-abiding citizens to protect them.”

More than a decade later, Badenoch is now trying to get a solution to that problem – and finally get the rest of the party on board with her.

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