What Suella Braverman's plan for quitting the ECHR gets right

Spectator

5 days ago

This morning's paper on leaving the ECHR from Suella Braverman and the Prosperity Institute doesn't say much that hasn't been said somewhere before. It reiterates the fairly obvious political case for a UK ECHR exit.
It talks about the erosion of sovereignty over immigration, policing and vast swathes of social policy; the baneful 'living instrument' doctrine that means we have now effectively given a blank cheque to a self-selecting and unaccountable bench to second-guess our democratic process in ever more intrusive ways; the Strasbourg court's arrogation of powers, such as the right to order interim measures never contemplated in 1950; and so on. The paper then goes in detail through the legal machinery of disentanglement, starting with the obvious point that the Convention itself provides for a right to leave on giving six months' notice, and then describing the legislative and administrative processes involved.
But don't be fooled. This may not be exciting reading (Suella is, after all, a lawyer); but the appearance of this document at this time matters a lot.
One very significant point is that the paper in one place meets head-on the arguments lazily trotted out as slam-dunk wins for the case against withdrawal. Does the UK's good reputation depend on ECHR membership? Doubtful. There are plenty of countries not members of regional agreements that are admirably free (think Canada and Australia), not to mention ECHR members that, shall we say, leave something to be desired (stand up, Azerbaijan).
Reform the ECHR from within? We've tried that, and it's had no effect in the areas that matter. Tweak the Human Rights Act? It won't work with the Strasbourg court sitting in the background waiting to pounce. The right of the EU to withdraw police cooperation under the Withdrawal Agreement if we denounce the ECHR? Bring it on, and if need be, call their bluff. They have as much to lose as we have: it's a small risk, and one worth taking.
What of the elephant in the room, the Good Friday Agreement? More awkward, but nothing insuperable here. For one thing, it doesn't actually bar the UK from withdrawing from the ECHR. Instead it talks much more vaguely of the incorporation of ECHR provisions in Ulster law and court remedies to enforce it. If necessary, there must be some political horse-trading here, and in the end, Westminster must be prepared to put its foot down and face down Irish nationalists if necessary in the interest of a common rights regime in the UK.
To this extent, the Braverman document has continued the process of moving ECHR scepticism away from the fringe and placing it firmly in the range of the sayable and even politically plausible. More to the point, it also fills another void. So far, calls to ditch the ECHR have suffered from a similar difficulty to that which faced the Leave movement right up to the 2016 referendum and might well have tipped it into defeat: it has been heavy on criticism but light on practicalities. By laying down in some detail the measures to be taken to remove the ECHR from our law both in form and substance and opening these to debate, this may well reassure electors otherwise wavering.
Looking more widely, today's events could just indicate a subtle shift in political tectonics. Doubts about the way the ECHR is chipping away at the institutions of this country are engaging electors who might previously have shrugged off human rights as something remote and unconcerning. Whenever they read of an undeserving visitor to this country allowed to stay, often at our expense as taxpayers, on the basis of family life here or possible beastliness abroad, they increasingly connect this with the ECHR; so too when, as a harassed commuter or housewife, they find they cannot go about their business because of some demonstration said to be protected by a European right to cause inconvenience to the public.
Nor is it only electors. Teasingly, this morning's Telegraph said that Suella's proposals had cross-party backing not only from key figures on the Tory right (predictable: after all, even Kemi has said she is open to talk of abandoning the Strasbourg regime) and also from Reform, whose position has always been clear, but also from the DUP and even some from blue Labour (no names yet, but an educated guess might light on figures like Jonathan Brash, the free-thinking MP for Hartlepool).
Whisper it quietly, but human rights scepticism is becoming the new mainstream. Defenders of the Strasbourg status quo are shrinking to an increasingly small caucus of senior Labour figures, Tory grandees and a motley collection of urban intellectuals and academics. It's quite possible that within a few years, ECHR enthusiasm will have declined to a niche interest in much the same way as, say, Euroscepticism did twenty years ago. Now that's a change worth contemplating.