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Why stick with the useless ECHR?


THERE is a long and somewhat ignoble British tradition of recently retired senior officers railing against the policies and actions they themselves implemented when serving. It’s therefore not entirely a surprise that the former Defence Secretary (who was only a lowly Captain when he left the Army) Ben Wallace has joined their ranks, berating the European Convention on Human Rights. He said such legislation was protecting terrorists.  

I look forward to the release of the Cabinet minutes when he raised this issue with each of the three Prime Ministers under whom he served. I also hope that he left an explanatory note for his lightweight successor, Grant Shapps. Wallace’s fundamental point, that the ECHR constrains the defence of the realm, is something that every Secretary of State should be raising while in office. His specific concern was that it was thought to prevent British Forces from performing extraordinary rendition missions. It’s also got in the way of the Rwanda idea.

While the latter may be no bad thing, the ECHR has been woven into the fabric of the UK since we wrote and signed it in 1951. It was inconceivable to the political and government machine that we would leave the EU, but we did. Why then are we stuck with this possibly unnecessary convention? It was created in the aftermath of the Second World War, largely to permit the rehabilitation of West Germany and its integration into Nato and what became the EEC. The population of the UK, having been protected from its monarch and government for centuries, had no need of the ECHR in the 1950s. That protection included the 1689 Bill of Rights.

The UK didn’t and doesn’t need the double wrap. The one time that the ECHR might have been useful to UK nationals – when Johnson decided to imprison us all without trial during the lockdowns – it wasn’t invoked, not least because most of the rest of Europe was incarcerating its citizens too. (Did anyone even bother trying?)

As well as being a moneyspinner for lawyers, the ECHR delays justice in some cases by providing an additional forum for appeal. Worse, as UK law includes the precedents of case law (in a way that other European legal codes do not), decisions in the ECHR have a longer reach than perhaps intended, but good intentions pave the road to hell. Our Supreme Court is not supreme. Parliament is not sovereign.

The ECHR obstructs trade too. Part of the post-Brexit trade deal includes adherence to the ECHR and there is an argument that quitting ECHR would end the Brexit deal. Well, it’s already clear that the Brexit deal is a poor one (ask any Ulster Unionist why). So we need either to renegotiate it or reject it anyway. Staying in one unnecessary convention is a ridiculous price to pay for being in another.

Admirers of the ECHR claim that there is a moral case: that leaving would send the wrong message to totalitarian regimes such as Russia. Perhaps. As Vlad the Invader sends his diplomatic messages by tank and missile I’m not persuaded that he gives a fig. I doubt Fat Boy Kim or other totalitarians care much either. 

A serious and protracted debate on the rights of Britons is long overdue. We have come a long way down the slippery slope from the premise that a Briton could do anything that was not against the law to having a list of permitted behaviours. Such a list is, of course, much easier for the legal system. Unfortunately it is also very convenient for the tinpot totalitarians who lurk in Westminster and Whitehall. It’s also utterly useless for the future – how does a right to privacy cope with the world of the internet? Or lockdowns? Or the Orwellian-sounding ‘hate crimes’ introduced by Blair?

We have had a Bill of Rights for 334 years, although it was compromised by Blair’s Human Rights Act of 1998 which incorporated ECHR into UK law. The 1689 Act was really rather good, and was the basis for subsequent American and European versions. Johnson’s government wanted an updated one, which it entrusted to Dominic Raab. Of course, being a product of the Johnson Government it was a lash-up, keeping much of the lunacy of the 1998 act, as TCW’s editor wrote at the time. One of the great, albeit inadvertent, achievements of the Truss government was that the proposed Bill lost parliamentary time and died; it was formally withdrawn in June this year

At a time when both the main political parties have near-identical  middle-ground policies and have replaced oratory with management-speak, a debate on the rights of a Briton and how to enshrine them safe from power-hungry mandarins and politicians is long overdue. Such a debate is pointless while we remain in ECHR.

Engaging in such a debate would give the once-libertarian Conservative Party a way of differentiating themselves from crypto-socialist Labour. Sadly, it won’t happen, which creates a huge opportunity for a genuinely libertarian party to step up to the challenge.

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Patrick Benham-Crosswell
Patrick Benham-Crosswell
Patrick Benham-Crosswell is a former Army officer who has spent the last 30 years in commerce. He is the author of Net Zero: The Challenges, Costs and Consequences of the UK's Zero Emission Ambition. He has a substack here.

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