Monday, July 22, 2024
HomeBrexit WatchA referendum’s not the answer to the Strasbourg question

A referendum’s not the answer to the Strasbourg question


THE first rule of Fight Club is: you don’t talk about Fight Club. In politics, it’s about not declaring cynical ulterior motives. That rule just got broken.

The idea has been floated about turning the next general election into a ‘Super Thursday’ double poll by bolting on a referendum about whether or not to leave the European Convention on Human Rights (ECHR). More precisely, it would be about quitting the treaty and replacing the arrangement with something else, possibly rejoining it again after fixing the current arrangement. Because fixing it does need. 

Across the years, newspapers have covered an increasing number of scandals for which the Strasbourg Court, the institutional engine room that lies at the heart of the ECHR, has ultimately been to blame. Transgender rapists being held in women’s prisons, halted deportation of genocide suspects, terror suspects allowed to abscond, massive business burdens from data privacy changes. The only real winners have been the Health and Safety and Human Resources industries. The worst cases have seen the British judge openly being outvoted by his colleagues – or at least that’s how the system used to run before things became too embarrassing for Whitehall. Blair spotted that a typical scenario looked bad in the press. Either a UK court had to reverse ferret on a judgment, or a minister had to pull the plug on a policy, after being very publicly overridden. As a master of spin and image, one of his early moves was correspondingly to introduce the Human Rights Act 1998. Its function was not to overturn these embarrassing clampdowns by an increasingly alien court, but to mask the source of the problem by making it look as if decisions had been made domestically. For a while the tactic worked, though only as a veneer. I tracked the history and tried costing it for 2010: the estimated bill came to £2.1billion a year, and matters have not improved since.  

Attempts by Conservatives to revisit this shameful cover-up have hit the double hurdle of a neo-liberal legal blob falsely dramatising what any changes would mean, and a House of Lords that has a corpse-hold on the failed status quo. The latter even vetoed an unexpectedly innovative attempt by Dominic Raab to square the impossible circle that would have partly fixed the problem from within existing structures, albeit in a manner heavily dependent on any future Government’s determination to pick individual fights on every issue.

On this fiasco of human rights law gone wrong, the Conservative government and the Red Wall-red meat voters appear to be united in spirit against the tofurati. Thus there is a logic to seeking to mobilise the public anger at this blockade of commonsense reform, and to re-engage with the mass of voters who have lost faith in the party by giving them a meaningful standard to rally around. But tacking it on to an election as a distinct referendum issue is too openly parti pris, and risks muddying the plebiscite vote rather than confounding the parliamentary polls.

If it were straightforward, I’d prefer simply to repudiate our treaty membership and take it from there. But the existence of the 1998 Act and added complications from references inserted into other treaties (which were warned about at the time) mean that something does need to go through Parliament. Brexiteers might also be chary about setting precedents that could get deployed under some madcap Rejoiner government in future years.

Glum inaction, though, is not the remaining option on the table. Far better to go big on a scrum’s push in Parliament, this time to bin the 1998 Act and with an unambiguous commitment to withdraw from the ECHR. This would flush out the blockers so that the voters can see where the obstacles lie – primarily with Labour, and with the Lords, and with some Conservatives who should know better. A commitment to deliver on the ECHR would then be included directly in the manifesto, allowing a future government to trigger the Salisbury-Addison Convention, which is described here. The election of a future Conservative government standing on such a manifesto then removes the block. If a Conservative government is not returned next time, then one repeats the manifesto pledge in the election after that. The ‘human rights’ fiasco won’t go away and will only get worse over time, especially under Labour. The alliance against it can only grow.

I can understand the sense of urgency, born of frustration over a Conservative failure to deliver, and the prospect of an even longer wait should Labour get in. However, turning a perfectly acceptable manifesto issue into a separate referendum question is merely playing political advantage, and adds risk. Unlike some of the names associated with this referendum idea, I’ve taken part at high level behind the scenes in referendum campaigns. These things don’t just win themselves. For starters, they require cross-party alliances – yet from the moment this plebiscite has been mooted it’s been touted as a waterwing for the Conservative party. It may well mobilise campaigners to come out and deliver the literature and the votes, but how many of them have their own leaflets to get out at the same time? Is the assumption that campaign donations won’t be double-tapping the same contributors? How many Change supporters would still stay at home? What looks tactically like a good idea turns out to carry a lot of strategic baggage and uncertainty.

This is not to argue for inaction. Lefty lawyers contend that leaving the Convention would put human rights at risk. Yet look at the examples of Canada and the United States, who studiously stayed out of the human rights counterpart set up by the Organisation of American states, the Council of Europe’s new world shadow. Look too at the cases of Australia and New Zealand, who have seen no need to establish some new Oceanic Court of Human Rights. Their Common Law and democratic traditions, along with a robustly independent judiciary unfettered by a foreign court, quite suffice. These countries understand the risks of a clash in Common Law and Napoleonic Code, and where cases set precedent when there may not be a UK judge or lawyer or plaintiff even in the courtroom. They understand that democracy requires Parliament to be able to change bad laws. It is a marker of the poisoning of our own legal system that today’s pseudo-liberal lawyers consider themselves to be the absolute guardians of democracy, admitting an arrogant entitlement to hamstringing the ability of elected representatives to change those laws ‘because they are politicians’.

The ECHR is failing us, not just here but across the continent. Our relationship with ‘human rights’ is increasingly broken. Three generations on, a system literally set up to prevent the excesses of the Gestapo is now distracted by legal debates over hurt feelings, personal perceptions, and the primacy of the rights of cheats and lawbreakers. Such a painful breach between man and law is unsustainable, and has to be fixed. A referendum conducted for political advantage, however, is not the solution. The answer lies in an unvarnished commitment for radical change by a Prime Ministerial candidate showing their calibre. It may happen later rather than sooner, and it should already have taken place. But it will happen.

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Lee Rotherham
Lee Rotherham
Dr Lee Rotherham is Director of think tank, The Red Cell , Executive Director of Veterans for Britain and Chairman of the appeal to establish a Museum of Sovereignty. He was Director of Special Projects at Vote Leave.

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