The Guardian view on attacking the ECHR: the real target is judicial independence and the rule of law

The Guardian

3 days ago

Most British citizens have little contact with human rights law, which is as it should be in a mature democracy. Widespread anxiety about basic freedoms is a feature of more repressive regimes.
Many people will only have heard of the European convention on human rights (ECHR) in the context of the last Conservative government's failed attempts to dispatch asylum seekers to Rwanda, or in a handful of incidents where convicted criminals or terrorist suspects have avoided deportation to jurisdictions where they might face inhumane treatment. Such cases are amplified by politicians who are hostile to the whole apparatus of human rights law. The Strasbourg court that adjudicates on breaches of the ECHR is denounced as an enemy of British sovereignty.
Those attacks will continue for as long as asylum, and small-boats traffic on the Channel in particular, are salient political issues – for the foreseeable future, in other words.
Labour's new 'one-in, one-out' scheme for returning seaborne refugees is more robust in legal and humanitarian terms than the failed Tory method. France is a safe country. That won't stop critics accusing the government of failing to control the border and citing international human rights conventions as the main impediment to the restoration of law and order.
Nigel Farage has said he would 'get rid of the ECHR' as a day-one priority should Reform UK ever form a government. Kemi Badenoch is drifting to the same position, albeit with circumspection. The Conservative leader acknowledges that peremptory rupture is not straightforward, especially for Northern Ireland since European convention rights are woven into the Good Friday agreement. Mrs Badenoch has commissioned a report to consider how an ECHR exit might be achieved but expressed her personal view that Britain 'will likely need to leave' because human rights are wielded as a 'sword … to attack democratic decisions and common sense.'
The core argument, for both Mrs Badenoch and Mr Farage, is that voters want politicians to expel undesirable elements from society but the popular will is being thwarted by unelected judges. Human rights, in this conception, are a loophole through which criminals and foreign interlopers evade justice.
Ideas codified after the second world war as foundational principles of a new democratic settlement for Europe are recast as attacks on the law-abiding majority. This rhetorical subterfuge gets a purchase on public discourse through channels previously opened by Brexit. The ECHR is not an EU institution, but the fact of it being European in name stirs suspicion that it is an alien imposition.
Dispensing with human rights obligations would be a necessary step for any government seeking to emulate Donald Trump's programme of detaining and deporting migrants without regard for due process. It is not far-fetched to envisage a Reform government recreating that model, given Mr Farage's record of admiration for Mr Trump.
ECHR rulings are not infallible. A 71-year-old institution can reasonably be scrutinised with a view to reform. But that is not what its noisiest UK antagonists have in mind. They target the convention not because it is a big part of public life, but because it is a minor one and poorly understood. It is a soft target in a longer campaign to undermine judicial independence, discredit liberal principle and, ultimately, degrade the rule of law to the benefit of unaccountable executive power.