Withdrawing from the The European Convention on Human Rights was always a red herring. The Government must now press on for other solutions.
Withdrawing the United Kingdom from the European Convention on Human Rights as a knee-jerk reaction to today’s Supreme Court judgment would be entirely wrong-headed, and calls to do so must be resisted by Ministers. It is the reddest of red herrings.
To understand quite how inadvisable such a move would be, the role and nature of the ECHR must be properly established. Developed in the wake of the horrors of the Second World War to safeguard basic rights and freedoms in a Europe that had been ravaged by war and dictatorship, the Convention was largely devised by British Conservative lawyers, and is one of our most distinguished and enduring post-War legacies. Our leadership in the Council of Europe endures to this day, as we stand shoulder to shoulder with Ukraine against invasion by the renegade Russian regime.
The Strasbourg Court’s judgments are advisory only, and where the UK is directly engaged, the number of times per year that we are found in breach of the convention is vanishingly small. Where the Government believes it has legitimate disagreements with the Convention’s interpretations and, therefore, a case to fight, it can do so – and often with success. For example, we prevailed over the legality of imposing whole life sentences and, in the Abu Qatada case, which has interesting parallels with the Rwanda case, we were able to deport him to Jordan for trial when Jordan made the necessary legal reforms to allow this to happen. We also resolved the notorious prisoner voting issue with a very small but sensible compromise agreed at a political level.
The ECHR also underpins the 1998 Good Friday Agreement, serving as a “safeguard” of the rights of both the Unionist and Nationalist communities in Northern Ireland. Any move to alter this arrangement by negotiating an exemption for Northern Ireland from the rest of the United Kingdom would not only involve breaking international law but also upset the delicate balance of Northern Irish politics. ECHR rules and principles were also fundamental to the 2020 UK-EU Trade and Cooperation Agreement, and to its police and judicial cooperation provisions in particular. Such collaboration with our European neighbours will be crucial if we are to reach an effective and practicable solution to the Channel crossings.
Of course, today’s decision was delivered not by judges in Strasbourg but by our Supreme Court here in Britain. Their unanimous decision was in essence about whether or not there was enough evidence to demonstrate that in 2022, Rwanda was a “safe country” according to our domestic law underpinned by the 1951 Refugee Convention. The question of ECHR membership wouldn’t have affected this decision one way or the other. Ministers now must ensure the solutions they propose to the issues of the day comply with the law and are able to withstand robust legal challenge rather than being tempted by the populist playbook. The Prime Minister and our new Home Secretary can be trusted to do the hard work necessary to achieve this.
Let us take a collective step back from today’s judgment and the ensuing clamour, and re-examine, with purpose and seriousness, the measures that British Ministers can take to bring the policy in line with the law of the land here in Britain. The success of the bilateral agreement with Albania in reducing crossings from that country can be looked to as a blueprint for success that would not require unravelling the ECHR and everything that depends on it. Ignore the red herrings and press on with practical solutions that work.
This article can be found in the Telegraph here: https://www.telegraph.co.uk/news/2023/11/15/this-failure-has-nothing-to-do-with-the-echr/
Rt Hon Sir Robert Buckland KBE KC MP is Conservative MP for South Swindon and former Lord Chancellor and Justice Secretary