Sir Robert Buckland KC is a former Secretary of State for Justice, Lord Chancellor, and Secretary of State for Wales.
The ongoing Conservative leadership contest is, understandably, yielding little that is concrete in terms of hard policy. We are still only weeks on from the worst election defeat in our history. Contenders are focusing on the values that bind us together as Conservatives, but there is one notable exception so far: the issue of Britain’s membership of the European Convention on Human Rights.
I am not going to tread familiar ground by recounting the history of our Party’s role in its establishment but will instead bring matters up to date. Putting it bluntly, as a party that must aspire to return to government, rushes for a quick fix on issues like this do us a disservice.
We should be under no illusion leaving would be hugely complex. There would be a whole raft of treaties and obligations we would have to unpick. Swathes of domestic law would require redrafting. The ECHR played an important part during the Northern Ireland peace process and helped to underpin the Good Friday/Belfast Agreement of 1998. As Conservatives and Unionists, we should be very mindful of the potential effect withdrawal would have on Northern Ireland.
There are issues of practical politics to consider too. First, as we know the party is split on this issue, before jumping to this position we must consider the challenge of managing a parliamentary party that is divided on such a key policy. Last month we paid a heavy price of being a divided party in government. We should learn from our mistakes and do all we can to avoid doubling that cost at the next general election.
Second, were we, despite all this, to form a government with simple departure as our policy, we would have to devote a significant amount of bandwidth to this rather than cleaning the mess Labour will leave us. The issue would dominate any campaign and inadequate and vague answers to the myriad “what if” questions that would inevitably arise would be ruthlessly exploited by our political opponents.
It seems unlikely to me the public would reward a party having a conversation with itself about abstruse issues instead of their priorities. The next election will not be won on the back of an ECHR withdrawal pledge.
Finally, what would it achieve? Withdrawal will not remove the prospect of court challenges or the application of domestic law. The Supreme Court’s Rwanda decision of 2023 would not have been decided differently if we had left the ECHR, for example. The disillusionment we would sow from a bold, but high-cost promise, only to see little to no improvement could be painful indeed.
While I think it is time to move beyond the labels of 2016, it isn’t lost on me that some fellow Remainers have struck a stronger tone against the ECHR than Leavers like Priti Patel and James Cleverly. Views will always differ across our broad church, but I would caution against anyone who voted on my side in the Brexit referendum feeling the need to overcompensate.
Indeed, Patel and I have form on respectful disagreement on Europe. She has been consistent in her views, as I have been in mine but on the issue of the ECHR we share common ground with colleagues on either side of the 2016 divide who can unite around a push to reform the court before committing to any further action.
So what can we do? Since we cannot outdo Reform by being a party of protest, we must create a credible alternative to Labour’s incoherence. Similarly, we should never try and out-LibDem the LibDems who cast any European body as sacrosanct and beyond reproach. We should do what Conservatives do best; conserving the good in an institution while working towards necessary improvement.
There is plenty for natural supporters and sceptics of the ECHR to unite around in Opposition. We can then hold Labour’s feet to the fire in their phony ‘reset’ of relations with Europe by asking what their reform agenda is. We should regard ECHR reform as unfinished business for the Tory Party, and we should focus on regaining the opportunity to complete it.
To devise a meaningful policy, we first have to analyse the nature of the problem. Here, reality rarely matches rhetoric. The UK is hardly ever found to be in breach of Convention Rights, with just one such occurrence in 2023 and just two breach cases in 2022.
In fact, on important issues such as the lawfulness of “whole life” sentences, Strasbourg has been on Britain’s side. The Prisoner Voting case back in 2005 was a point of tension, but the issue was successfully resolved by the Committee of Ministers in a political process. The Strasbourg Court is most definitely not the same as the EU Court in Luxembourg!
Do not mistake me for a fan of everything about the ECHR. As Lord Chancellor, I was deeply concerned about striking the right balance between the judiciary and the democratically elected government. It was clear to me that reform was needed. I helped draft the 2019 manifesto which called for an updating of the Human Rights Act.
The review of the act I initiated recommended changes. These should have been the foundation for us to effectively reform it while we had the chance, with the distinct aim of preventing the judiciary from being drawn further into the political arena. I also oppose the use of Convention rights in conflict situations that are beyond the jurisdiction of the Council of Europe.
We are not alone among nations in our desire for a better balance with the Court. Most recently, the climate change case involving Switzerland has been rightly criticised by many informed observers. If Labour won’t take up that challenge, a future Conservative government should.
Far from walking away from like-minded sceptical European partners, Britain could take the lead in rallying them for multilateral, meaningful, reform while learning from their far more liberal interpretations and compliance with the court’s rulings.
Before those in my party rush towards a costly and divisive disentanglement, we should unite behind a platform to lead other countries in fixing our issues with the court. If, after a meaningful attempt, my sceptical colleagues conclude it cannot be salvaged, that would be for them, but the conservative instinct is surely to improve institutions as a first step.
For those who say it is impossible, look at the facts. We have already seen a welcome change to the rules about so-called “pyjama injunctions” under Rule 39, which now will have to satisfy a higher threshold before being granted, with no more anonymity for judges and a proper right of challenge too. The Court is showing that it can listen to legitimate criticism and change in consequence.
When Labour lost in 2010, they spent over a decade pursuing comfort zone policies. We must rapidly learn the lessons that they took over a decade to learn. Committing to leave ECHR without at least trying to reform it first might make some feel good as we vote for our next leader but risks landing the party with an almighty hangover in Opposition that it will struggle to shake off.
Sir Robert Buckland KC is a former Secretary of State for Justice, Lord Chancellor, and Secretary of State for Wales.
The ongoing Conservative leadership contest is, understandably, yielding little that is concrete in terms of hard policy. We are still only weeks on from the worst election defeat in our history. Contenders are focusing on the values that bind us together as Conservatives, but there is one notable exception so far: the issue of Britain’s membership of the European Convention on Human Rights.
I am not going to tread familiar ground by recounting the history of our Party’s role in its establishment but will instead bring matters up to date. Putting it bluntly, as a party that must aspire to return to government, rushes for a quick fix on issues like this do us a disservice.
We should be under no illusion leaving would be hugely complex. There would be a whole raft of treaties and obligations we would have to unpick. Swathes of domestic law would require redrafting. The ECHR played an important part during the Northern Ireland peace process and helped to underpin the Good Friday/Belfast Agreement of 1998. As Conservatives and Unionists, we should be very mindful of the potential effect withdrawal would have on Northern Ireland.
There are issues of practical politics to consider too. First, as we know the party is split on this issue, before jumping to this position we must consider the challenge of managing a parliamentary party that is divided on such a key policy. Last month we paid a heavy price of being a divided party in government. We should learn from our mistakes and do all we can to avoid doubling that cost at the next general election.
Second, were we, despite all this, to form a government with simple departure as our policy, we would have to devote a significant amount of bandwidth to this rather than cleaning the mess Labour will leave us. The issue would dominate any campaign and inadequate and vague answers to the myriad “what if” questions that would inevitably arise would be ruthlessly exploited by our political opponents.
It seems unlikely to me the public would reward a party having a conversation with itself about abstruse issues instead of their priorities. The next election will not be won on the back of an ECHR withdrawal pledge.
Finally, what would it achieve? Withdrawal will not remove the prospect of court challenges or the application of domestic law. The Supreme Court’s Rwanda decision of 2023 would not have been decided differently if we had left the ECHR, for example. The disillusionment we would sow from a bold, but high-cost promise, only to see little to no improvement could be painful indeed.
While I think it is time to move beyond the labels of 2016, it isn’t lost on me that some fellow Remainers have struck a stronger tone against the ECHR than Leavers like Priti Patel and James Cleverly. Views will always differ across our broad church, but I would caution against anyone who voted on my side in the Brexit referendum feeling the need to overcompensate.
Indeed, Patel and I have form on respectful disagreement on Europe. She has been consistent in her views, as I have been in mine but on the issue of the ECHR we share common ground with colleagues on either side of the 2016 divide who can unite around a push to reform the court before committing to any further action.
So what can we do? Since we cannot outdo Reform by being a party of protest, we must create a credible alternative to Labour’s incoherence. Similarly, we should never try and out-LibDem the LibDems who cast any European body as sacrosanct and beyond reproach. We should do what Conservatives do best; conserving the good in an institution while working towards necessary improvement.
There is plenty for natural supporters and sceptics of the ECHR to unite around in Opposition. We can then hold Labour’s feet to the fire in their phony ‘reset’ of relations with Europe by asking what their reform agenda is. We should regard ECHR reform as unfinished business for the Tory Party, and we should focus on regaining the opportunity to complete it.
To devise a meaningful policy, we first have to analyse the nature of the problem. Here, reality rarely matches rhetoric. The UK is hardly ever found to be in breach of Convention Rights, with just one such occurrence in 2023 and just two breach cases in 2022.
In fact, on important issues such as the lawfulness of “whole life” sentences, Strasbourg has been on Britain’s side. The Prisoner Voting case back in 2005 was a point of tension, but the issue was successfully resolved by the Committee of Ministers in a political process. The Strasbourg Court is most definitely not the same as the EU Court in Luxembourg!
Do not mistake me for a fan of everything about the ECHR. As Lord Chancellor, I was deeply concerned about striking the right balance between the judiciary and the democratically elected government. It was clear to me that reform was needed. I helped draft the 2019 manifesto which called for an updating of the Human Rights Act.
The review of the act I initiated recommended changes. These should have been the foundation for us to effectively reform it while we had the chance, with the distinct aim of preventing the judiciary from being drawn further into the political arena. I also oppose the use of Convention rights in conflict situations that are beyond the jurisdiction of the Council of Europe.
We are not alone among nations in our desire for a better balance with the Court. Most recently, the climate change case involving Switzerland has been rightly criticised by many informed observers. If Labour won’t take up that challenge, a future Conservative government should.
Far from walking away from like-minded sceptical European partners, Britain could take the lead in rallying them for multilateral, meaningful, reform while learning from their far more liberal interpretations and compliance with the court’s rulings.
Before those in my party rush towards a costly and divisive disentanglement, we should unite behind a platform to lead other countries in fixing our issues with the court. If, after a meaningful attempt, my sceptical colleagues conclude it cannot be salvaged, that would be for them, but the conservative instinct is surely to improve institutions as a first step.
For those who say it is impossible, look at the facts. We have already seen a welcome change to the rules about so-called “pyjama injunctions” under Rule 39, which now will have to satisfy a higher threshold before being granted, with no more anonymity for judges and a proper right of challenge too. The Court is showing that it can listen to legitimate criticism and change in consequence.
When Labour lost in 2010, they spent over a decade pursuing comfort zone policies. We must rapidly learn the lessons that they took over a decade to learn. Committing to leave ECHR without at least trying to reform it first might make some feel good as we vote for our next leader but risks landing the party with an almighty hangover in Opposition that it will struggle to shake off.