Only ECHR withdrawal can stop Britain from becoming like America

Telegraph

2 days ago

'It ain't what you don't know that gets you into trouble. It's what you know for sure that just ain't so,' warned Mark Twain.
What everyone 'knows' about the European Convention on Human Rights (ECHR) is the claim that it was a British invention, comprising traditional British rights, eagerly adopted by Attlee and Churchill. The problem is, 'that just ain't so'.
In fact, Attlee reluctantly ratified the convention in 1950 only on condition it had no jurisdiction in the UK – a position upheld by Churchill and his Conservative successors.
Even so, the myth that the ECHR is our British and Churchillian heritage is endlessly deployed to bolster Conservative support.
Yet leaders of both parties have found the ECHR problematic. Even Tony Blair told ministers to consider resiling from parts of it, whilst David Cameron, Theresa May and Rishi Sunak all threatened to leave.
If the convention just incorporated long-standing British rights, it would have had little effect when Wilson – 15 years later and without Parliamentary debate – allowed British people to take cases to the European Court in Strasbourg.
But far from cases being few and trivial, the Strasbourg court has found the UK to have violated Human Rights in 329 cases out of 567, ranging from military operations to environmental policy.
Why is it such a problem for Britain? Attlee refused to accept the court's jurisdiction following official warnings against giving 'an international court… unprecedented legislative powers which Parliament would never agree to entrust to the courts of this country'.
Those 'unprecedented legislative powers' arise because convention rights are so vague that the Strasbourg court has to create new law to give them concrete meaning. The court also decides how rights may be balanced against other objectives.
Under the pretext that he was 'bringing rights home' from the international court, Blair's Human Rights Act did extend those 'unprecedented legislative powers' to the courts of this country, which since 2000 can also interpret and apply ECHR rights in domestic cases – though still subject to appeals to, and rulings of, Strasbourg.
So 'rights' mean whatever the courts – initially British, ultimately, Strasbourg – decide they mean.
The right to life sounds clear. But when does life start and who can end it? If Strasbourg were to rule, quite plausibly, that the Right to Life means the state cannot help to end it, Britain would be treaty-bound to abandon the assisted dying Bill. Equally, given that the court treats the ECHR as a 'living instrument', they might decide it implies a far more extensive right to die than in the Bill.
Either way, the point is that voters would have no say. The Strasbourg court recently overruled a Swiss referendum declaring that: 'Democracy cannot be reduced to the will of the majority of the electorate and elected representatives in disregard of the requirements of the rule of law' – as interpreted by the court, needless to say.
Making laws and balancing rights are intrinsically political processes that used to be the job of Parliament, accountable to voters.
Transferring those powers to the courts, here and in Strasbourg, inevitably politicises the judiciary, through no fault of the judges themselves. It exposes them to political criticism – even Sir Keir Starmer has criticised immigration tribunal judges.
It provokes demands for political vetting of judges. It undermines faith in the rule of law. Maybe only withdrawal can save us from ending up like America, where Supreme Court judges are appointed based on their political loyalties and life expectancy.
The claim that withdrawal would bracket Britain with Belarus and Russia is fatuous. We would be joining other common law democracies – Australia, New Zealand and Canada – who uphold human rights without submitting to a supranational court.
I would prefer minimal change and to consider alternatives short of leaving the convention. Some of these would reduce, though none avoid, politicising the judiciary. But there is no hope of serious reform unless Britain provoked it by withdrawing until substantial changes are agreed.
Paradoxically, the Labour Government's recent proposal to legislate to tell courts how to interpret convention rights for immigrants destroys the whole rationale of the ECHR.
This was the belief that only the courts – free from political considerations – could determine the 'true' meaning of each human right. Once Parliament takes back control, as it should, of spelling out our rights in law, the original case for adhering to the ECHR will evaporate.