If Euro judges block Rishi Sunak’s new plan to stop small boats, quitting the ECHR is the only way to protect our borders, writes DANIEL HANNAN
The Channel boats crisis could determine the outcome of the next General Election.
If Rishi Sunak can halt the dinghies, he might be in with a shot. If not, the Conservatives will suffer a 1997-style defeat.
It seems the Prime Minister is aware of this; and reports this weekend that he is willing to take Britain out of the European Convention on Human Rights (ECHR) are certainly promising.
Let me explain: in June last year, an 11th-hour decision by an anonymous Strasbourg judge blocked the transfer of seven illegal immigrants from the UK to Rwanda.
It was an extraordinary moment. A bilateral deal between the British and Rwandan governments — given the green light by our own Supreme Court — had been shredded by a foreign power. It was bizarre, too, that the notoriously slow European Court of Human Rights managed to rush its decision through with such alacrity.
Rishi Sunak in 10 Downing Street on the phone to the Irish Taoiseach Leo Varadkar
The court has a backlog of more than 10,000 cases, a thousand of which have been awaiting adjudication for over a decade.
Yet, rather than allow an elected British government to implement its agenda, it somehow managed to spring into action to halt the deportation aircraft as it stood ready on the runway.
The message from across the Channel was clear: while snared within the ECHR, the UK will not be able to create the deterrent necessary to halt the small boats coming to our shores.
And since then things have only got worse. Some 65,000 people are expected to cross the Channel illegally this year — all of them coming from a safe country, namely France.
Mr Sunak — who has made ‘stopping the small boats’ one of his ‘five key pledges’ for 2023 — is now finalising plans for strict new legislation to get a grip on the crossings.
But, if Strasbourg judges step in yet again and rule that these plans are also unlawful, then the Prime Minister is said to be open to the idea of exiting the ECHR.
Sounds reasonable enough?
Well, even the merest suggestion that Britain might reconsider its membership seems to have sparked mass hysteria in some quarters.
Radical lawyers claim that throwing off the authority of the ECHR would remove our basic rights. Britain would turn itself into some sort of rogue nation, they say, like Russia — or Belarus!
A group of people thought to be migrants are brought in to Dover, Kent, onboard a Border Force vessel earlier this year
These criticisms are downright silly. How do you suppose we got on before the ECHR was established in 1953? Were we deporting whole populations, jailing people without due process, practising systematic torture? Of course not. Yet the liberal elite has managed to disseminate this idea that we are ‘given’ our rights by European judges.
‘If Britain does pull out of the European Court, it would deprive British citizens of their rights,’ says Leftist barrister Geoffrey Robertson.
Really? Which rights? The rights to free speech, freedom from slavery, and freedom of worship? Of course not. These things existed here in the UK for generations before anyone thought of extending them across Europe.
But what about the right of prisoners to pornography? Or the right of terrorists to compensation? Or the right of hate-preachers to avoid repatriation to their own countries? There, withdrawing from the ECHR might indeed make a difference.
For the ECHR does not give us any rights. What it does is put a different set of people in charge of interpreting our rights. And that leaves us exposed to activist judges.
Now, in fairness, it is not always easy to police the border between interpreting law and establishing new principles. The more general the law — and the ECHR necessarily lays down very general principles, such as the right to privacy, or to a family life — the more opportunity there is to cross the line into making new laws.
In 2015, the then British representative on the ECHR, Paul Mahoney, explained it as follows: ‘The open textured language and the structure of the Convention leave the Court significant opportunities for choice in interpretation. In exercising that choice, particularly when faced with changed circumstances and attitudes in society, the Court makes new law.’
There’s the rub. For who should determine how ‘attitudes in society’ have changed? Should it be judges — or should it be the rest of us, through the ballot box?
Attitudes do change over time. For example, when the ECHR was first established, Britain, like many countries, outlawed gay relationships among consenting adults.
Happily, we have since moved on — first lifting the ban and then, in time, legalising same-sex unions. Each successive law was passed by British MPs who had to answer to the rest of us. That is how the system of democracy is meant to work.
The Prime Minister during an interview with Piers Morgan on TalkTV
ECHR rulings, by contrast, often advance an agenda that has been rejected at the ballot box. Whether or not prisoners should vote is a matter for MPs, not for lawyers. Yet in 2005, Strasbourg judges rather ruled that the UK could not have a blanket ban on prisoners voting. Thankfully, Westminster has continued to ignore the ruling.
Nonetheless, it is hard to avoid the conclusion that those who took the issue to Strasbourg in the first place were deliberately trying to circumvent public opinion.
Something similar has been happening with immigration and asylum. Most voters support a measure of controlled, legal immigration. But what almost no one supports is a system which allows people to elbow their way to the front of the queue.
Yet the ECHR begins from the position that deportation orders should, whatever the circumstances, be resisted. It was precisely this attitude that drove ministers to the Rwanda solution.
Pushing claimants offshore was seen as the only way to stop politically motivated judges from disregarding what the law says in favour of what they feel it ought to say. The fact that the attempt to move the process offshore was itself overturned rather proved the point.
What of the argument that Britain must set an example on human rights? It is true that Russia and Belarus are outside the ECHR. But so are Canada and New Zealand — surely more useful points of comparison. Indeed, the fact that Russia was happily signed up to the ECHR during almost the whole of Vladimir Putin’s baleful autocracy, finally renouncing the Convention only last September, tells you enough.
The European Convention was a useful way to help formerly Fascist countries adopt liberal norms in the wake of World War II — and an encouragement to Communist countries to follow.
It was never intended to prevent democratic governments from setting their own immigration policies.
Britain does not have a human rights deficit. It did not have one before 1953, and it does not have one now.
But it does have a democratic deficit. People feel that it now makes little difference how they vote when their decisions can be overruled by foreign courts.
So yes, unless the Conservatives can address that concern at the next election, they will lose — and, in all honesty, they will deserve to lose.
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