The Article originally appeared in The House.
I count myself lucky to be British. We have inherited a set of rights that are second to none. As Attorney General – and as prime minister – I would proudly protect this inheritance.
MPs will need no reminding that this Parliament was an early adopter of many of the rights now in the European Convention on Human Rights (ECHR).
Lord Sumption tells us that the ECHR is a “dynamic treaty”, its substance changing over time. The result is “to transfer an essentially legislative power to an international body standing outside the constitutional framework of the United Kingdom”.
The truth is that transferring decision-making powers means you might get decisions you don’t like. That is what we saw recently with the grounding of the Rwanda flight. Our Supreme Court agreed that it was legal for the flight to depart. Strasbourg did not.
Some believe I am overstating the problem – and overengineering the solution. Sir Robert Buckland describes leaving the ECHR as “using a political sledgehammer to crack a legal nut”. Unfortunately, this does not take account of what is “seen” and “unseen” (to borrow from Frédéric Bastiat). What was seen is that a handful of individuals were ready to be flown out, only to be blocked by domestic injunctions relying on the Strasbourg ruling. What is unseen is the hundreds of economic migrants that were discounted before that.
This and other examples, like the blocked deportations of violent foreign offenders, demonstrate this “dynamic” element. The Strasbourg court took a Convention designed to prevent the likes of the Shoah and turned it into something that applies much more broadly.
What is the answer? Buckland’s suggestion is to renegotiate the ECHR. This would require a consensus between 46 member states, most of which simply don’t see the ECHR as a problem, because of their more permissive socio-legal cultures. He highlights the Brighton Declaration – but glosses over the fact it mostly made procedural changes, leaving the substantive mission creep of Strasbourg untouched.
Some say – in hushed tones – why don’t we stay in and quietly breach it? Sometimes this is given the tag “principled defiance”, linked to what we did with prisoner voting. There, we were defending a single policy, eventually agreeing a fudge. With asylum, we are talking about hundreds of individual decisions per week.
At present we don’t have clear legal powers within the Nationality and Borders Act to act contrary to the ECHR, since courts will construe any powers so they align with Convention rights. Even if we tried, the Strasbourg court would pass a Rule 39 injunction (as with the Rwanda flight), and a UK court would likely mirror that. It would be clear to anyone that our Rwanda policy had no hope of actually deporting anyone, and the number of illegal migrants would grow. We would be incapable of meeting our 2019 manifesto promise to “take control of our borders”.
To fulfil that promise, we need to leave the ECHR, and retain the Human Rights Act, as strengthened in Dominic Raab’s British Bill of Rights. This would not harm the Belfast (Good Friday) Agreement, devolution, or the EU trade deal. The Belfast Agreement stipulates that rights should be embedded in law – that was achieved by the Human Rights Act. Likewise, devolution legislation refers to the rights in the HRA itself. Lord Frost was very careful not to bind us to the ECHR in his Brussels negotiations. We would make a special regime for Channel crossings, setting out eligibility rules for transfer and setting up a scheme for safe legal routes for refugees applying from overseas.
Leaving the ECHR is the only solution which solves the problem, and is entirely consistent with international law. It puts us in good company – with Canada, Australia, and New Zealand. With like-minded democracies we could draft a Common Law Rights Charter, encouraging others to make a political commitment to stand up for rights globally.
Taking this step will be controversial. Our establishment can’t conceive of a world without the ECHR. But if you ask Commonwealth lawyers or legislators from outside Europe, “would you want your Parliament to be second-guessed by a foreign court?” Invariably, they would say “no”. Once and for all, we should truly bring rights home.
Suella Braverman is Attorney General for England and Wales and Conservative MP for Fareham