David Gauke is a former Justice Secretary, and was an independent candidate in South-West Hertfordshire at the 2019 general election.
At some point this week, the High Court will rule on the legality of the Government’s policy of deporting asylum seekers to Rwanda. It is possible that the courts will rule that the policy breaches our obligations under the European Convention on Human Rights. If that happens – and noises from within Government suggest it may not – the reaction from some on the right will be to call for the UK to pass domestic legislation that overrides our obligations under the Convention, at least on this specific point.
We know that this will be the reaction because there has already been a pre-emptive strike. Last Wednesday, Jonathan Gullis, MP for Stoke-on-Trent North, presented a Ten Minute Rule Bill to Parliament calling for this specific policy. Many senior Conservative MPs (including Boris Johnson) put their names down in support of the Bill and, on the day, 69 Conservative MPs (not including Boris Johnson) voted for it.
The Bill was defeated (the Government abstained, the main Opposition parties voted against as did four Conservative MPs), but a marker has been laid. An element of the Conservative Parliamentary Party wants the UK to leave the Convention. This element includes a former Prime Minister and, according to “sources close to the Home Secretary” reported in the Sunday Telegraph, Suella Braverman.
This should come as no surprise given that she advocated withdrawal from the Convention when running for the Conservative Party leadership and, in an interview with The Times on Saturday, publicly stated that nothing can be left off the table when it comes to the Convention. The Justice Secretary, Dominic Raab, has made a similar point.
The current position of the Government is not to leave the Convention but to change the way in which people in the UK can enforce their rights under it. Out goes the Human Rights Act (which enables UK courts to directly enforce Convention rights) and in will come what is currently the Bill of Rights Bill. The practical effect of the Bill is that Convention rights are still enforceable, but it will be much more time-consuming and expensive for litigants to do so.
Presumably, the hope is that the process of making use of the Convention will become so arduous that hardly anyone will bother. But is a pretty grubby compromise, neither satisfying those who believe in protecting rights through the Convention nor those who believe it is an affront to national sovereignty to allow the European Court of Human Rights to have jurisdiction over the UK.
The Bill is almost entirely without friends, other than Raab who has worked on this during various stints in the Ministry of Justice. Every time he leaves the Ministry, the idea is dropped (as happened in September when Liz Truss’s administration abandoned it) but is revived on his return. If Raab was to leave his post at any point soon – and many in Whitehall expect that to happen over the multiple bullying allegations (which he denies) – the Bill of Rights Bill will surely go with him.
This will clarify the debate. This is one of those issues where the middle ground does not really work. We can muck about with the role of the UK courts but that will ultimately satisfy no one; or we could try to disapply the Convention in particular areas, as Gullis has advocated, but that would be a breach of our obligations. Either we are subject to the Convention, under the jurisdiction of its Court but with an ability to enforce Convention rights through UK Courts or we are not. In or out.
Except that there is a complication, and a familiar one at that – Northern Ireland. Membership of the Convention is central to the terms of the Good Friday Agreement. For the entirety of the UK to leave the Convention, the UK would be breaking the terms of the GFA, with all the obvious implications this may have for stability in Northern Ireland and for our international reputation, especially with the US.
There is a solution to this which is for the Convention to apply to Northern Ireland but not Great Britain. In other words, Northern Ireland remains subject to a set of laws, rights and obligations (that, by the way, applies to the Republic of Ireland) but which will not apply to Great Britain. This is both a familiar situation and a problematic one – at least for unionists.
Those who advocate withdrawing from the Convention have some questions to answer and they should not be allowed to brush them off – as those who argued for Brexit did in 2016 – only to discover subsequently that they had created a rather large problem for which they did not have a solution. Will they uphold the terms of the GFA and continue to apply the Convention to Northern Ireland? If so, are they willing to accept that the laws in Great Britain and Northern Ireland will diverge? And if they do, what implications do they believe this will have for Northern Ireland’s place in the United Kingdom?
It may be possible to be in favour of upholding the GFA and maintaining Northern Ireland’s place in the union whilst also favouring withdrawing from the Convention, but I am struggling to see how.
Even if we put aside the issue of Northern Ireland (and, if we have learnt anything from Brexit, we really shouldn’t), there are big issues which need to be confronted, not least about our international reputation.
There are currently two countries in Europe who are not parties to the Convention – Belarus and Russia (the latter withdrew in March one day before being kicked out). Is that really the company we want to keep? The UK’s standing in the world has taken a pummelling in the world in recent years amongst other Governments and, lest we forget, the financial markets. Rishi Sunak – to his credit – has recovered some of that ground but if were to adopt a policy of abandoning the Convention we would be viewed as once again having taken leave of our senses.
I suppose it might appear less of an aberration if other countries followed suit. Maybe Hungary might join us? There should be no consolation there. As for the rest of the world, it is hard to see that our entreaties to, say, China to respect the human rights of the Uighurs or the people of Hong Kong would be strengthened by us leaving a convention on human rights. It is a policy that would not just be an act of self-harm but detrimental to the rights of others.
Yes, small boats is an electoral problem and, yes, it is perfectly possible that the Convention constrains some of our policy options. But before we react to this issue with an ill-thought out and impractical response that creates much bigger problems, let us think this through. Leaving the European Convention on Human Rights would be a mistake.