My writing these days is quite different to the Article 50 era. Post-Brexit, I’m of a far less compromising nature. Since we’ve gone to the trouble of leaving the EU, on the hardest of terms short of leaving on “WTO terms”, sacrificing considerable trade to do it, we might as well get on with it and go the whole hog. And that includes exit from the ECHR.



I’m told that abandonment of international law reduces our moral authority, but I can’t think of any recent example where dogmatic adherence to international law has bought us any leverage. It’s not like we can talk to Putin with a straight face about international law given our last few military adventures.

For all our high minded internationalist values, they tend not to make an appearance when signing an arms agreement with Saudi Arabia, and the EU doesn’t let things like human rights abuses interfere with trade deals – or influence where it bought gas from. We’re entirely selective about when we invoke international law.

Chiefly, though, the ECHR should be offensive to any democrat. The framework has spawned endless extensions of rights and has eroded the very concept of citizenship. Anyone who rocks up in a dinghy without invitation can claim the same rights as British born citizens. It undermines the notion that laws should be by the people for the people, and rights and entitlements are extended to undeserving foreigners by an activist judiciary that doesn’t even believe in borders.

Consequently the law is constantly being written and rewritten by the courts, evolving into a body of law that has zero democratic legitimacy, mandating social policies that never appeared on any manifesto. On matters such as immigration, the rule of the ECHR brings human rights into direct conflict with the majority will to limit immigration.

A significant fraction of the inflow is driven by the family reunification entitlement, where migrants who acquire residential status are able to bring in spouses and close relatives, including parents, grandparents and siblings. The flow under this provision is substantial, accounting for 17 percent of UK totals. That’s what makes the dinghy invasion even more troubling.

There’s another reason I dislike the notion of imposed extended rights. It stems from the same problem I have with international development bodies seeking to impose LGBT and women’s rights on the developing world. These are freedoms they have to fight for in their own time. Nations have to evolve at their own pace and laws must be derived from a common, organic set of values. Values based rules must enjoy a majority consensus. For rights to have legitimacy, rights have to be established from the bottom up, not imposed by foreign elites.

That much is also true of Europe. The ECHR presupposes all of Europe shares the same intrinsic liberal values, when a quick glance at Poland, Hungary and Ukraine suggests otherwise. The rule of law dispute within the EU is partly centred around a clash of values on LGBT laws. This is an area where the liberal elites believe the science is settled. It most certainly isn’t, especially as the transgender lobby flexes its muscles. The Hungarian parliament has voted through laws banning the dissemination of content in schools deemed to promote homosexuality and gender change. EU leaders have asserted that the law is not compatible with “EU values”.

It is galactic hubris to assume there is any such thing as EU values or even European values beyond basic tenets of democracy – and even than, that’s stretching it. We can’t even say for certain that there is such a thing as British values after half a century of human rights based social engineering. To assert that the rulings of foreign judges are superior to the laws passed by elected bodies is to say that democracy is subordinate to liberal technocracy.

The presumption that without the ECHR Britain would immediately turn down the road of fascism is similar rhetoric to that employed by the remain campaign, but nobody is looking to roll back fundamental rights commensurate with being a democracy. It’s just that there is an urgent need to correct a systemic imbalance that prevents Britain from controlling its borders. The ECHR grants protections to criminals with no moral right to be here. If the ECHR allows activist lawyers to undermine our system of immigration then it simply has to go.

Time and again we have seen how the ECHR the first port of call for tyrants seeking to overturn laws and policies they don’t like. The courts have replaced parliament as the venue for opposition and that opposition is accountable to nobody. This is the means by which transgender activists hope to win the right to take puberty blockers without parental consent. This is far beyond the scope of courts. This is a political issue that must be settled by politics.

But then that’s the thing with the entire human rights industry. It exists to abolish politics, and to take it out of the hands of ordinary people. It is partly why our democracy has stagnated.

Withdrawing from the ECHR, though, is likely to be a major undertaking and those advocating withdrawal need to start thinking about what replaces it. Some see withdrawal as a restoration of British common law, but that only goes so far. Withdrawing from the ECHR is a major constitutional upheaval, and an opportunity to reinvigorate politics. Why settle for restoration to a decrepit model when just about everyone can agree our model of for politics is in need of modernisation?

Having read further on Dominic Raab’s Bill of Rights, I’m now convinced it’s more of the same timid tinkering that will make very little difference either way. Raab is hoping his bill will have the same effect as leaving the ECHR without having to take in the human rights blob, doing it in a more low key way. I don’t think it’s going to be enough, and wouldn’t take much amending by any future government to restore the ECHR to full effect.

Critics of the bill overstate its impact. As ever we get the more shrill catastrophising from the left. More measured analysis suggests the bill does downgrade ECHR jurisprudence but doesn’t change the legal reality.

Professor Mark Elliot has it that this bill appears to be an attempt to preclude domestic courts from favouring creative or generous interpretations of rights under the ECHR ‘living instrument’ doctrine, whereby the Convention is viewed as a dynamic rather than a static human rights instrument, instead requiring UK courts to focus on the ‘original’ meaning of the text. He thinks that’s a bad thing. I don’t.

The ultimate issue here, says Elliot, is the notion enshrined in clause 3 that the UK Supreme Court is the ‘ultimate judicial authority’ when it comes to the interpretation of Convention rights as a matter of domestic law. “That is all well and good — but it cannot change the fact that, a matter of international law, the ECtHR is the ultimate judicial authority on such matters, and will continue to determine the scope of the UK’s binding treaty obligations”.

That is precisely why we have to leave the ECHR. Any ruling made under this adaptation could end up facing a challenge in Strasbourg and then we’re back at square one.

But then Raab’s Bill seems to be facing a mauling from all sides. An article on the “far right” British Democrats website makes roughly the same points as Mark Elliot. “This is completely contradictory and an example of how the government is tying itself in knots in its pretence to be whittling back the powers of the ECtHR while also remaining bound to its every tenet.  So not only do the changes in the Bill have little merit, but even those that make sense are unlikely to succeed”.

The other problem, they note, is cultural. “The first problem is that British judges are pro-European and in favour of a maximalist interpretation of the ECHR. As I said earlier, British judges are not currently obliged to follow the ECtHR – but they always do, through choice. Most of our judges are just social-marxist political activists disguised in a wig, and they are likely to continue to rule against the government no matter what the legislation is trying to encourage them to do”.

Although ministers have complained loudly that the recent flight of illegal migrants to Rwanda was blocked by the ECtHR – something the new Bill seeks to prevent happening in future by stipulating that “no account is to be taken of any interim measure issued by the European Court of Human Rights” – we should remember that by the time the Home Office had gone through the British courts there were only seven passengers left on board anyway! British judges cannot be trusted. Another problem is that the British government is so pathetically submissive to ECtHR rulings; of the 47 countries signed up to the ECHR only two (the Czech republic and Austria) implement the court’s rulings more promptly than Britain. We are ruled by weak, cowardly and treacherous politicians, and the Bill of Rights will not change that. 

I would add also that withdrawal from the ECHR doesn’t prevent judges referring to ECHR cases in their decision making even if rulings have no formal authority.

Mark Elliot has it that “the legal problem, is that the Bill rests on a false premise — namely, that it is possible to legislate domestically in order somehow to manipulate or magic away treaty obligations that are binding upon the UK as a matter of international law. The reality is that that is simply impossible. Even if individuals are less able to bring human rights claims in domestic courts, and even if those courts are less able to hold that Convention rights have been breached, the legal reality — that the UK is bound by the ECHR for as long as it remains a State Party — will not change as a result of the Bill. If the Government’s view is that the ECHR is a bad system, or that involving judges in the protection of human rights is inherently objectionable, it should have the courage of its convictions and say so”.

Again, he doesn’t agree it is. but I do. The generous consensus, though, is that the Tories need to either shit or get off the pot. That, sadly, is what they won’t do. There needs to be renewed pressure from the right to bring Tory policy back into focus. Now that we’ve left the EU, there can be no doubt as to the culprit when the next paedophile is granted permission to remain and these such examples will keep mounting. Like the campaign to leave the EU, the campaign to quit the ECHR could span decades, and like Brexit, it has that same feeling of inevitability about it as the population of the UK keeps rising and measures to remove illegal immigrants continue to be thwarted in the courts.

For as long as we are still bound by foreign laws, courts and judges, the ECHR will be a running sore in the Tory party much like EU membership was. It won’t take very long for Raab’s tinkering to be exposed as ineffectual and it’s only a matter of time before Patel’s borders Act is overturned in the courts. If the government is unable to bring a very visible problem under control then it becomes an other existential issue for the Conservative Party.

As with Brexit though, for such a seismic move to make a real impact, we first need a government that knows what needs to be done next. However much of the European legal order we remove, we’re still lumbered with a feral establishment and ineffectual politicians who are too lazy to take on the human right blob, and continue to benefit politically from left wing legal activism. Quitting the ECHR won’t solve that and I’m not sure what will. But I do know we haven’t seen the last of the “revolt on the right”.