George Fergusson

The Conservatives’ formal support for withdrawal from the European Convention on Human Rights (ECHR) leaves both our right-of-centre parties committed to this. Given the usual pendulum effect of politics, the prospect that it might happen is growing. 

This is depressing. Joining Belarus and Russia in our positioning on human rights doesn’t sound good. Conservative leaders have rejected this and other concerns. 

Russell Findlay, Scottish Tory leader, has said that it is not a matter for devolved governments: immigration, driving the proposed change, is a UK, not devolved, matter. And that it wouldn’t affect the Belfast/Good Friday Agreement.

Chris Philp, shadow home secretary has gone further, saying the Good Friday Agreement doesn’t refer to the ECHR: there is just a reference in an annex called the Multi-Party Agreement.

Kemi Badenoch, the UK Conservative leader, has said that the Belarus and Russia parallel is irrelevant: the US and Canada have human rights and aren’t in the ECHR.

And many Conservative spokespersons have highlighted the clearance given to the idea by the leading jurist Lord Wolfson.

In legal terms, it probably doesn’t directly affect devolved structures in Scotland or Wales. The Scotland and Wales Acts are Westminster creations and can be amended at Westminster. The politics would be more complicated, maybe much more so. 

For Northern Ireland, there are direct political and legal problems. With all respect to Mr Philp, the Multi-Party Agreement is the Belfast/Good Friday Agreement. It has important references to the ECHR: parts of the agreement rest on it. The Rights, Safeguards and Equality of Opportunity section says that the British government “will complete the incorporation into Northern Ireland law of the ECHR, with direct access to the courts and remedies for breach of the Convention”; another part bars authorities there from breaching ECHR rights.

Denouncing the Convention — the unusually stirring technical word for leaving it unilaterally — would not only breach a particularly important treaty but throw open the Northern Ireland settlement which, with all its imperfections, has kept the peace there for the last 27 years. Doing this as part of an assessed risk would be daring. Suggesting it while your lead spokesman says the ECHR doesn’t come into the agreement is either alarmingly ignorant or deliberately and dangerously misleading.

The implications for the UK as a whole are also serious. Mrs Badenoch’s point about the US and Canada is misguided for reasons beyond the obvious one of their not being in Europe. Both countries have embedded human rights safeguards — the US Constitution and the Canadian Charter of Rights — beyond the reach of political leaders with temporary majorities.  

The ECHR is similar. States covered by the Convention can “derogate” — suspend — most parts of the Convention if they really have to and give proper notice to the Council of Europe. Some sections, including those protecting life, and banning torture or inhuman or degrading treatment, can’t be set aside. But most can be. 

Claiming that the leading lawyer Lord Wolfson gave a green light to all these difficulties also needs a closer look. He is an eminent and doubtless very honourable lawyer. But, despite his title, he is not a judge and certainly didn’t write his report in an independent capacity. He is the Conservatives’ shadow attorney general. And his brief was specifically to say whether the ECHR was a block to nine stated potential policies of the party. He concluded that it probably was.

Several UK parties find the Convention frustrating on immigration problems. Britain isn’t alone in this. In May, nine countries led by Italy and Denmark jointly called for a review and possible revisions of the Convention to give national governments more scope on migration law. For some reason the British government, though apparently sharing these governments’ concerns, hasn’t joined them. 

Joining others to get the changes we want seems a better idea than getting rid of the whole Convention. Maybe surprisingly, we need it more than other European countries. Like the US and Canada, they all have constitutions that safeguard rights, at least in theory: clearly in some places, like Russia and Belarus, they are not effective. We have no safeguards, apart from “convention” and the ECHR.

A British government with a disciplined Commons majority and a disregard for convention can do anything. Judges must interpret whatever law Parliament passes. The only constraint is the House of Lords — but there is nothing to stop a determined government from appointing enough compliant peers to remove that problem.

There is a sad irony that the country which needs the Convention most is teetering towards getting rid of it. And that the political party which has longest prided itself on standing up for citizens’ rights against the growing power of government should have decided to remove our main protection.

George Fergusson is a former UK official who at one stage was head of the Human Rights and Elections Branch of the Northern Ireland Office and later served in the Cabinet Office Constitution Group. This article first appeared in Scottish newspaper The Herald.