Earlier this year there was a lot of talk and many words written in mainsteam media speculating on whether Prime Minister Rishi Sunak, was seriously considering contesting the next election on a commitment to withdrawing from the ECHR if the European Court of Human Rights were to find his new immigration legislation incompatible with the Convention. Only this week, Robert Jenrick, the Minister for Immigration, said that the Government would do “whatever is necessary” to stop “the small boats”, clearly implying that this included withdrawal from the ECHR.
The UK/ECHR head – to – head is quite similar to the Germany/ECJ-ECB headbutting contest witnessed in recent years concerning the ECB’s bond buying programme.
Though the European Court of Human Rights is not actually part of the EU its decisions and recommendations often for the basis of policy for EU member states particularly on the always controversial issue of immigration. But the ECHR is not an elected body made up of representatives from various constituencies, instead it is a body consisting of intellectuals, civil servants, and senior legal professionals. And these individuals have little understanding of the realities affecting the lives people who fall under their jurisdiction. Thus when the court’s members make a decision on human rights the impact on the lives of ordinary people living in member states is not an important consideration.
But the decisions of the ECHR are not really about human rights or the interests of voters in its member states, they are about power and control as these things usually are. And the ECHR has, by overreaching its authority, usurped to itself a great deal of the sovereign power of its member states.
ECHR is based around a presumption that it is there to sort out rights abuses involving individuals, including irregular migrants. What such conventions do not take into account is that their decisions made about individuals affect aggregate behaviour. The number of irregular migrants increases as people in poor countries perceive that ECHR, etc., has rendered European governments impotent with regard to controlling migration. Selling the family’s goats to pay the people traffickers becomes a more attractive proposition when success is 97% guaranteed.
The European Central Bank (ECB) has also been quite creative in the way it interprets its own mandate and it was grating more and more against the core principles of the German constitution: at some point there was going to be a showdown. The German Constitutional Court fired a couple of shots over the ECB’s bows first before it all came to a head. In the event the showdown never happened some good old European bureaucratic dirty deal was bodged up, allowing the German threaury and the ECB to back down without having to admit they had backed down.
The same will probably happen in the UK / ECHR kerfuffle over the treatment of ‘asylum seekers. The Conservative government, with the 2024 election in mind, wants to get tough on people who arrive in our country or turn up on our shores without and identification or official documentation and claim they are ‘asylum seekers’. The ECHR says they must be treated as asylum seekers even though they are unable to prove that they meet any of the criteria for being granted political asylum.
The Government needs to exercise caution in the way that they approach this. Rabid, lurid campaigning against it, featuring the kind of statements heard from Tory ranks this week (“migrants who don’t want to go on the Bibby Stockholm can f*ck off back to France”) are going to go down really badly internationally (including with the Yanks due to the link to the GFA). More rational, principled debate and discussion along the lines of this article would be the way forward.
What puzzles many of us ordinary punters (i.e. non – lawyers,) is the attitude of many English lawyers who seem to react to any suggestion that we should revise our attitude or even abandon the ECHR as blasphemy. It seems to go beyond a proper respect for treaties. Is it that they see the ECHR as our equivalent of the US Constitution (as interpreted by the US Supreme Court)? and therefore a necessary guarantee of the rule of law? of the prevention of executive abuse? of the power of activist judges? or is it just the usual groupthink and insistence on orthodoxy which seems to be a growing part of the zeitgeist more generally? It seems odd given the smugness with which English lawyers used to proclaim the supposed superiority of the Common Law and other aspects of our legal system.
It is obvious that the legal profession, like politics, the media, medical professions, academia and the snivel service is increasingly infected by woke left thinking and therefore the ill – defined term ‘human rights’ has become a dogma.
It has been observed that when the legal community was more conservative, the elder a conservative members of the profession may have been bemused by the irrational, cultural – Marxist ravings of young left wing upstarts but they did not attempt to silence or discriminate against them. Now the woke brigade are in the ascendancy, dissenting views age actively frowned upon, are effectively career limiting and can result in a lawyer being struck off.
Until recently the test of a lawyer was whether the practicioner was able to see through and dispense with the BS and get to the crux of the matter. No longer so, it seems that the profession is just as prone to herd behaviour, emotional handwringing and virtue signalling as teachers or academics.
Because ‘Human Rights’ has become such an emotive phrase it is unlikely the UK will ever leave the ECHR and put itself in the company of Russia and Belarus. What could happen is that the Conservatives may push back on Strasbourg’s “mission creep”. If the UK succeeds in doing that there could easily be several governments in Europe eager to follow suit. The US government will be happy too, as its ally isn’t siding with the enemy or messing with the GFA…and frankly, having their own illegal immigration fiasco going on, the Americans should have ample sympathy for the British (and larger European) predicament.
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