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It could never happen here. Could it?
One of the astonishing things about Brexit is the number of times one hears of people who supported it partly as a way to end freedom of movement into the UK, who apparently failed to realise that this would also work the other way round – to restrict their freedom of movement into the EU.
We hear them now complaining that they no longer have the same rights to travel within the EU, can no longer buy their dream retirement home on the continent, or are stuck in long lines at EU passport controls.
Now, we have anti-migrant campaigners arguing that the UK should leave the jurisdiction of the European Court of Human Rights (ECHR), as a way to bypass human rights laws which protect migrants from being deported without adequate safeguards about their future treatment and rights in place.
Don’t they realise that the ECHR is there to protect them as well?
The whole point of the court is to ensure that people have an ultimate source of protection and redress against governments which overreach their powers or abuse their own citizens.
‘Ah, but’, I hear proponents of leaving the ECHR say, ‘we have perfectly good laws and courts within the UK to protect our human rights. We don’t need any interfering, European judges to tell us what to do’.
Except that we do.
Having a supranational body to act as the ultimate guarantor and protector of our rights, according to a set of international standards, is exactly what we need. Otherwise, what is to stop any future British government from passing laws to gradually erode our rights and protections within the UK? After all, Parliament is sovereign, and can pass any laws it likes, without being bound by its predecessors.
Moreover, unlike in many other countries, we have neither an independent head of state with the authority to rein in an overreaching executive, or a constitution with a bill of rights, against which to measure any legislation, or an elected upper chamber with the democratic legitimacy to act as a counter-balance, or if necessary, to overrule the House of Commons.
‘Yes, but it would never happen here’, say the anti-ECHR campaigners. ‘The UK is the home of the Magna Carta. Westminster is the model of parliamentary democracy. We never succumbed to fascism or communism in the last century. We don’t “do” extremism, or indeed any kind of “ism” at all. We are an inherently, decent, moderate, sensible people, governed by leaders who respect the rule of law, and can be trusted to exercise their powers with self-restraint’.
Except that they can’t.
If the past few years have shown us anything, it is that the ‘good chaps’ theory of government is comprehensively dead, and that we have very few safeguards indeed to guard against executive overreach when our leaders are determined to abuse their powers.
Just consider the numerous ways recently in which ministers have sought to avoid being held accountable.
The Johnson Government’s unlawful decision to prorogue Parliament in August 2019 in order to limit scrutiny of its Brexit strategy. Johnson’s blocking of the publication of Parliament’s investigation into Russian interference in UK politics until after the 2019 General Election. His efforts in November 2021 to change the processes for upholding standards in Parliament to protect disgraced MP Owen Patterson. His unilateral rewriting of the Ministerial Code to weaken the sanctions against ministers found to be in violation of the code. And his Government’s naked admission in 2020 that its plan to revise the Brexit arrangements for Northern Ireland would break international law in a “specific and limited way”.
In her brief tenure as Prime Minister, Liz Truss sacked the Permanent Secretary to the Treasury, Tom Scholar, and refused to allow the Office of Budget Responsibility to scrutinise her emergency budget before it was published. Her decision to sideline such institutions, designed to protect the UK against major economic policy errors, were held to be one of the factors behind the disastrous market reaction to the Budget.
Rishi Sunak came to office pledging to restore integrity to government, yet, as Prime Minister he has repeatedly made misleading statements – claiming, for instance, that the UK’s rapid Coronavirus vaccine roll-out was a direct result of its departure from the EU or about his Government’s handling of safety in schools.
Other ministers have been allowed to get away with wildly inaccurate claims about the benefits of new trade deals the UK has signed since Brexit, the implications of its Illegal Migration Bill, or implementation of its net zero commitments.
The Government’s recent proposals to strengthen ethics and integrity in public life, while improving the current situation, still fall short in many key respects, including rejecting recommendations to put the Ministerial Code on a statutory basis, or to change the way government ethics advisors are appointed, so that they are more independent of the executive.
The erosion of our rights and protections is already happening now, even while we are part of the ECHR.
Just consider some of the laws adopted in the past 18 months – including the Elections Act 2022 which introduced photo ID for voting and gave the Government new powers over the Electoral Commission; the 2022 Judicial Review and Courts Act which circumscribes some powers of judicial review and limits options for victims of unlawful government actions to obtain full remedy; or the 2023 Public Order Bill which gives the police sweeping new powers to curb “disruptive” (undefined) public protests.
Given this record, can we really be sure that future British governments will not be tempted to abuse their powers, perhaps in more extreme ways than we have seen so far, when they are no longer bound by the ECHR? By very definition, the only reason for any government to seek to leave the ECHR is because it must want to pass laws which might be in breach of ECHR standards. Doesn’t that prove the very point that we cannot trust our government always to respect human rights?
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The ECHR is there to protect us against our own worst impulses. As we saw in the January 6 insurrection in the US, passions can quickly rise and get out of control when fuelled by populist, demagogic leaders. Many of the participants of those riots have since expressed extreme remorse for their actions, saying that they got swept away on a tide of emotion. They thought they were acting as genuine patriots, defending their democracy against a stolen election. Many now feel angry and betrayed by Donald Trump for leading them on.
Can we be 100% sure that British people will always be immune from such out-of-control demonstrations ourselves – for example against migrants and refugees? British politicians used to use their positions to urge moderation at volatile moments. Now we have not just the odd backbencher, but Government ministers like Suella Braverman, actively whipping up sentiment against migrants, attacking judges trying to uphold the law, and criticising NGOs fulfilling their humanitarian mission to protect human lives.
Perhaps the Government’s current anti-ECHR rhetoric is just an electoral tactic or a ploy to give the appearance of being committed to reducing migration through every means possible. It surely knows that adherence to the ECHR is a core component of the Good Friday Agreement and of our current trade agreement with the EU. It surely cannot want to end up in the same company as Russia and Belarus, the only other countries in Europe not to be part of the ECHR.
But then its whipping up of sentiment against the ECHR is grossly irresponsible, since it delegitimises one part of our unwritten constitutional arrangements, which are there to protect us. It risks unleashing populist fervour against the ECHR, which might one day not be containable.
Many might think that leaving the ECHR is just about stopping foreigners doing certain things to us. Many might trust that a government would only ever use restrictive new powers against foreigners, not its own people. But, given recent history, I would not be so sure. I certainly do not want to take that chance.
Just like with the decision to end freedom of movement, ultimately the biggest losers might end up being ourselves.
Alexandra Hall Hall is a former British diplomat with more than 30 years experience, with postings in Bangkok, Washington, Delhi, Bogota and Tbilisi. She resigned from the Foreign Office in December 2019 because she felt unable to represent the Government’s position on Brexit with integrity