‘Threatening to Leave the ECHR would be the Perfect Terrain for Next Conservative Election Campaign’

Threatening to Leave the ECHR would be the Perfect Terrain for Next Conservative Election Campaign

The Government may do just enough to rile up the Conservative Party’s voter base by engineering yet another pointless row with European bodies, writes former diplomat Alexandra Hall Hall

I’m sure I was not alone in heaving a sigh of relief last week when the Prime Minister announced a new deal with the EU – the ‘Windsor Framework’ – to improve certain aspects of the Northern Ireland Protocol.

For a few heady days, it seemed like the worst tensions of Brexit were behind us. Britain and the EU were back on friendly terms, working in good faith to resolve their differences, and looking forward to restoring cooperation in other areas of mutual benefit as well.

International partners also hailed the deal as a constructive breakthrough. The Wall Street Journal ran an op-ed titled ‘Britain is Getting Back on Track’, praising Rishi Sunak’s work to repair relations with the EU and arguing that, if the Windsor Framework holds up, it would also “remove a stumbling block in US-UK relations”.

Heralding the UK’s unswerving support for Ukraine, participation in AUKUS – the agreement to work with the US to help Australia build a fleet of nuclear-powered submarines – and the UK’s application to join the Comprehensive and Progressive Agreement for Trans Pacific Partnership, the article even suggested that ‘Global Britain’ could finally be “becoming a reality”. 

But this celebration may be premature.

At home, even though the Windsor Framework was widely acclaimed as a diplomatic success, achieving concessions from the EU which few had thought possible just a few weeks ago, the initial euphoria is already beginning to wear off. 

Boris Johnson, never one to miss an opportunity to grab the limelight, declared that he was not sure if he would be able to support it. Just like his support for Brexit, one suspects that his motives have nothing to do with genuine concern for Northern Ireland, and far more to do with his desire to find a way to return to frontline politics. Whatever his motives, his opposition may encourage others to come out against the deal. 

Other sceptics have complained that even though under softer terms Northern Ireland will still be bound to follow EU regulations in some regards and that there is still a lingering role for the European Court of Justice.  The DUP has also yet to issue its verdict. 

Even if the Windsor Framework holds up, another international row may break out, if Sunak’s Government presses ahead with its anti-asylum proposals. While it maintains that its plans do not violate international law, many experts believe that, depending how stringently they are applied, they could well contravene both the UN’s Refugee Convention and the European Convention on Human Rights (ECHR). 

This Government has always been clear about its wish to clamp down on migration into the UK, especially the rising numbers of asylum seekers arriving by small boats across the Channel. So, such proposals were not entirely unexpected.

But it is not inconceivable, indeed it is quite possible, that the timing of these new measures was deliberately designed to appease hardliners on the Conservative right, who might otherwise have been inclined to raise objections to Sunak’s efforts to restore cooperation with the EU.  

The Many Questions for Boris JohnsonOver his Support for Ukraine

Alexandra Hall Hall

This would be a form of robbing Peter to pay Paul. For not only is it doubtful that the new migration measures will even work as intended, if the Government is found to be in violation of either the UN Refugee Convention or the ECHR, Britain will be back to where we started before the Windsor Framework was announced – a country which is prepared to violate international law, strain relations with European partners and damage its international standing, all for short-term political ends. 

In discussing the new proposals, the Home Secretary used typical inflammatory language, asserting at one point that ”there are 100 million people around the world who could qualify for protection under our current laws. Let’s be clear. they are coming here”. In fact, the UK takes in only a small proportion of the world’s refugees.  

According to the UN’s refugee agency, the top five refugee hosting countries are: Turkey (3.78 million), Colombia (2.5 million), Germany (2.2 million), Pakistan (1.5 million) and Uganda (1.5 million). 74% of the world’s refugees are hosted in low and middle income countries. The least developed countries provide asylum to 22% of the total. 

In the UK – the fifth richest country in the world – as of September 2021 (the last year for which there were full UNHCR statistics), there were a mere 135,912 refugees, 83,489 pending asylum cases and 3,968 stateless persons here. 

The Office of the UN High Commissioner for Refugees said that it was “profoundly concerned” by what the UK Government has announced because “the effect of the bill (in this form) would be to deny protection to many asylum-seekers in need of safety and protection, and even deny them the opportunity to put forward their case”. It said “this would be a clear breach of the Refugee Convention and would undermine a longstanding, humanitarian tradition of which the British people are rightly proud”.

Needless to say, British diplomats will be in a much weaker position to insist that other countries should treat refugees humanely, if their own government is violating the refugee conventions at home. Perhaps some of those countries currently taking in way more than their ‘fair’ share of refugees might decide that they too will kick them out, creating further human misery and instability.

The greatest danger, however, is the possibility of a legal battle involving the ECHR.

Though the Government is claiming that this is not on the agenda for now, this would increase the risk of the UK exercising the nuclear option of withdrawing from the convention altogether. This would result in the UK automatically being expelled from the Council of Europe, for which adherence to the ECHR is a condition of membership, and would put Britain in the unedifying company of Russia and Belarus – the only two countries in Europe that are not members of the council. 

This would be an astonishing position for the UK to find itself in – as the country which helped draft much of the convention in the aftermath of the Second World War, and the first country to sign it. 

Withdrawal from the ECHR would also create new obstacles to cooperation between the UK and the EU. According to the terms of the UK-EU departure agreement, both sides are obliged to respect human rights as a shared value, in accordance with “international human rights treaties to which they are parties.”

The Trade and Cooperation Agreement (TCA) explicitly notes that, if the UK withdraws from the ECHR, cooperation on law enforcement and security matters would automatically cease, regardless of whether the rest of the treaty is still in force.  

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There are things which the UK could do to limit rights that don’t involve full-scale withdrawal from the ECHR. For example, it could pass a law limiting the way in which European Court of Human Rights’ case law is applied in UK courts or limit the applicability of ECHR rights in certain situations. Russia passed this kind of legislation in 2015. There have also been tussles between Hungary and Poland and the European Commission over the rule of law and protection of rights. But, again, this is strange company for the UK to want to keep.   

There is a lack of clarity in the TCA about exactly what would happen if the UK did fall short of its commitments to protect rights, which could in turn create even more problems. If the European Commission decided to terminate the entire agreement with the UK, no doubt Brexiters would spin this as another example of EU perfidy. 

Even though the Council of Europe and the ECHR are entities distinct from the European Union, hard Brexiters could milk the situation to argue that the whole terms of the UK’s departure from the EU remain unsatisfactory, because the UK remains locked into continued ECHR membership, undermining the aim of Brexit to ‘reclaim’ complete sovereignty from European institutions.

This could lead to renewed arguments from the UK side that we should terminate the existing agreements with the EU, including covering Northern Ireland, resurrecting Brexit-related tensions all over again. 

These scenarios seem far-fetched and unlikely to happen. But, perhaps this is the whole point of the exercise – not to actually address the migrant problem, or actually withdraw from the ECHR, but do just enough to rile up the Conservative Party’s voter base by engineering yet another pointless row with European bodies. This would be a shameful exploitation of migrants, some of the most vulnerable people on the planet, for purely domestic political advantage. 

The distinction between the EU and the ECHR is likely to be lost by many. Threatening to leave the ECHR would be perfect terrain for the Conservatives to campaign on in the run up to the 2024 election. They could pitch themselves as willing to stand up to overbearing European bodies, ‘woke lefties’, and human rights lawyers, while painting  Labour as ‘soft’ on migrants. 

If this is the case, then just as one chapter in our tense relations with the EU appears to be closing, another chapter may be about to open.