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Artillery Row

Against rights radicalism

A noble cause has mutated into an obstructive and anti-democratic force

The radical left’s attempt to stop this conference from taking place makes our gathering all the more important, not to mention satisfying.   

Many of today’s speakers are respected leaders in their fields. Many of us have been democratically elected. And many of us give voice to millions of people who live in the UK and on the European continent.

If only the globalists in Brussels put as much energy into securing our borders as they did trying to gag conservatives then perhaps our continent would be in a healthier state.

I’m going to talk today about one of the most radical and harmful influences on our politics and societies. A radicalism that is subverting and  reconfiguring our democracies by replacing the will of the people, expressed through representative parliament. Replacing it with the whims of unelected activist judges in Strasbourg through ever more tendentious interpretations of the European Convention on Human Rights. 

It is the task — and an urgent task — of true conservatives to successfully challenge this “rights radicalism”. 

Because whether it is securing our borders against illegal migration; removing rapists or paedophiles from our communities; preventing terrorism; protecting children and same sex spaces for women; defending our brave soldiers from witch hunts through the courts; the ECHR is binding our hands and choking common-sense decisions.

Until we are rid of it, our governments will find themselves impotent. 

The longer this rights radicalism is allowed to prevail, the greater the gap between what our governments promise, and what they actually do will grow; and the greater that gap becomes, the more that trust in democracy will erode.

What might be the consequence if the people of Britain and Europe lose faith in their political leaders to deliver the things that they keep voting for? Well, if the EU and our respective national governments cannot solve problems like illegal migration the decent, liberal, and democratic way, then I fear that our streets will fill with people offering indecent, illiberal, and violent solutions.

And so, while governments of the left continue to defend the ECHR as a means of advancing their progressive agenda; and establishment governments of the right and centre abjectly fail to develop the political will to do anything more than tinker, it will fall to true conservatives to rise to the challenge of defeating rights radicalism before it is too late.

Before turning to how we can achieve this aim, it is first necessary to understand how we got to where we are.   

In the aftermath of World War 2, the admirable aspirations of Western democracies to preserve those fundamental liberties which had so recently been bludgeoned by fascism, was symbolised by the ECHR.

The UK was the first to ratify in 1951. But it’s fair to say that even back then, the UK had reservations.

The Lord Chancellor at the time, Lord Jowitt, lobbied hard against the notion that the “half-baked” Convention should be policed by “some unknown court”, seeing it as a threat to our common law and constitutional liberties, and “wholly opposed to the theory of responsible Government”. 

Almost 75 years on from Lord Jowitt’s warning, the extent to which the ECHR disadvantages the United Kingdom is so manifestly obvious, that it can only be defended by those who see it as a vehicle for an open borders, supranational, anti-democratic political agenda — as well as a source of invitations to Davos.

Britain initially saw the ECHR as a means to recognise — not create — existing fundamental rights but it is now clear that an altogether different project has taken shape.

Rights radicalism — working through the ECHR — imposes through the courts radical policy outcomes that would be politically impossible to achieve via the ballot box. All disguised in the motherhood and apple pie rhetoric of human rights law. 

Through a combination of the ECHR and Labour’s Human Rights Act, the Strasbourg Court is delivering judgements that too often favour the rights of the criminal minority over the rights and safety of the law-abiding majority.

Lord Sumption — the former UK Supreme Court Judge — notes that by interpreting the ECHR as a living-instrument, Strasbourg recognises rights which states did not intend to grant, and which are not within the ECHR’s original object and purpose. 

In his words, the result is “to transfer an essentially legislative power to an international body standing outside the constitutional framework of the United Kingdom.” The effect of this is to undermine a fundamental principle of the UK’s constitution — parliamentary sovereignty. 

Stark examples of the harmful impact of the living instrument doctrine abound. 

Take Article 8, the right for respect of private and family life. The ECHR originally conceived this right as guarding against arbitrary Government intervention in family life — like house searches by the Gestapo or Stasi. 

But this noble goal has been disfigured beyond belief. In 2020, British courts accepted the appeal of a Nigerian national against deportation from the UK. The individual had been serving a long prison sentence for offences like assault and dealing heroin and crack cocaine. His appeal succeeded on the grounds that his “very significant obstacles” to integration in Nigeria trumped the public interest in seeing him deported, despite the serious nature of his offending. And that his deportation would therefore be irreconcilable with Article 8, and his right to a family life. 

The British people have never voted, and would never vote for such absurdities. 

The Convention that the UK signed up to in 1950 was obviously never intended to be a charter for the protection of foreign drug dealers at the expense of British citizens and the safety of our communities. Yet as a consequence of rights radicalism that is now the law of the land.

Or consider Article 3 which prohibits torture, inhuman, degrading treatment or punishment. Another worthy goal that has been distorted to an almost comical extent. 

In the UK we have foreign terrorists who have successfully claimed Article 3 rights that they cannot be deported because they may face tough treatment in their home countries — like the Somalian bomb plotter Wahbi Mohamed, who served 13 years in jail, and remains in the UK.

Thanks to the ECHR, when it comes to deportations, the government must now prove that the medical facilities available to the deportee in their home country do not create a risk that their health would be harmed by removal from NHS facilities. Of course, when someone is being deported from a developed to a developing country this will rarely be the case. 

One of the most egregious examples of rights radicalism was the use of Rule 39 interim measures by the Strasbourg Court in June 2022.

Despite English courts repeatedly refusing applications for an injunction, the Strasbourg court overruled the UK government, senior English judges and the will of the British people to prevent the government from sending flights to Rwanda as part of its plan to deter illegal migrants from crossing the Channel.

Rule 39 interim orders are not included in the text of the ECHR. The decision to intervene in how Britain wishes to secure its border, was taken by an unnamed judge, through an opaque process, with no published reasoning, and without the British Government having any ability to put forward its side of the argument. 

Since then, more than 70,000 thousand people have illegally entered the UK, many more are on their way, and I fully expect the Strasbourg court to intervene in whichever way it can to stop the Rwanda flights once more. 

Simply put, while the UK remains in the ECHR, we will not be able to control our border. 

In myriad other areas of policy-making, from welfare, sentencing, public order, counter-terrorism, housing, military action, taxation and press freedom, the Strasbourg Court has imposed radical policies on people that we never voted for, and in some cases have explicitly voted against. 

Just last week, the Strasbourg Court decreed that the Swiss government had failed to adequately protect people from climate change, creatively shoehorning this into Article 8, the right to family life. It did this in direct opposition to a referendum vote by the people of Switzerland concerning the extent of their country’s policies on tackling climate change.

By usurping the authority of elected legislatures and governments, the court is behaving in a profoundly undemocratic and politicised manner. 

The one British judge on the Strasbourg panel that heard the case, an individual not exactly hostile to the ECHR noted: “I fear that, in this judgement, the majority has gone beyond what it is legitimate and permissible”. 

He pointed out that as states have repeatedly and explicitly refused to adopt additional protocols to the ECHR on climate change — this Strasbourg judgement was clearly going beyond its limits. For once he and I are in total agreement. But the direction of travel is clear: he was one dissenting voice against 16 other judges.

So, what to do about it?

It is clear that the effect of rights radicalism has been to distort the Convention beyond all recognition so as to justify fashionable political outcomes as far as the Brussels establishment is concerned. The only solution is to restore sovereignty to our domestic courts by leaving the European Convention on Human Rights.

There are three main arguments typically advanced by those opposed to this course of action. 

First, that it would be preferable to reform the ECHR from within; 

Second, that it would upend the Good Friday Agreement and jeopardise peace in Northern Ireland;

And third, that it would destroy the UK’s reputation for adherence to the rule of law, making us a pariah state in the company of Russia and Belarus — the only other European countries that haven’t ratified the ECHR. 

Let’s take each of them in turn. 

The argument that we can reform the ECHR from within sounds eminently sensible. That is until you understand how this has already been tried and failed. When he was Prime Minister, David Cameron attempted to renegotiate terms with the Council of Europe. 

However, 10 years on from his efforts, it is very difficult to see any evidence of its impact on decision-making. The relentless judicial activism of the Strasbourg judges has continued unabated. 

Even if real reform were achievable, this assumes that we have time on our side. That people are content to tolerate open borders while bureaucrats inevitably spend years in negotiations to agree and then implement changes. Just as we saw with the European Union, fundamental reform just isn’t possible. That’s why I campaigned for Brexit.

Secondly, it is often lazily suggested that the Belfast Agreement requires the UK’s continued membership of the ECHR and the Strasbourg court — and that withdrawing would jeopardise peace in Northern Ireland. 

This argument misrepresents the legal reality. Withdrawal from the ECHR would in no way harm peace in Northern Ireland. Anyone who has actually read the Belfast Agreement will be aware that the ECHR is only mentioned a handful of times, with two main obligations. 

First, under Strand One on the Democratic Institutions in Northern Ireland, several safeguards are placed on the powers of the Assembly. One of these specifies that the Assembly cannot “infringe” Convention rights. This restriction is also baked into the Northern Ireland Act 1998.

Obviously, this limitation would remain in place even if the UK were to leave the ECHR — and happily, if ever a question were to arise over the limits of the Assembly’s powers, they would be determined by British judges, sensibly looking at the text of the Convention.

Second, under Strand Three, the British government undertook to “complete incorporation into Northern Irish Law of the ECHR”. At the time, it was envisaged that this would result in a specific piece of legislation for Northern Ireland, which was referred to in the Belfast Agreement as the Bill of Rights for Northern Ireland. 

This obligation was later swept into the Human Rights Act. That Act could be amended to apply to Northern Ireland only, or a new piece of legislation could be drafted, provided it contained Convention rights and direct access to Northern Irish courts. 

In any event, with a new domestic human rights regime which protected rights and freedoms pretty much as set out in the ECHR, in substance, rights would be protected in Northern Ireland as they have been since 1998.

The third argument made against withdrawing from the ECHR is the most dishonest. That the UK would become some global pariah state sliding towards totalitarianism. 

As if the UK doesn’t have a proud history of human rights dating back to Magna Carta, and the ECHR is all that is holding us back from becoming Russia or Belarus.

I reject the notion that a country cannot respect fundamental rights if it is not signed up to an increasingly politicised international human rights court.

America, Canada, Australia, New Zealand, and Japan amongst others, seem to manage just fine. 

We’ve heard these sorts of arguments before.

They were deployed by the architects of Project Fear during the Brexit debates. They didn’t fool the people then, and they can’t fool the people now. 

Just as with Brexit, if you explained to the British public how leaving the ECHR was necessary to take back control of our borders, take back control of our laws and put that question to them, they’d overwhelmingly back doing so at the ballot box.

So what are the practical steps necessary to leave the ECHR and start to defeat rights radicalism? 

We simply need to trigger Article 58 of the ECHR which would give 6 months’ departure notice to the Council of Europe. 

All it would take is for the Prime Minister to send a letter.

There would of course be legal challenges to this — the human rights industrial complex won’t go down without a fight. 

We may have to subsequently confirm our departure with an act of parliament. 

The Human Rights Act which incorporates the ECHR into UK law would need to be dealt with separately. It could be repealed at the end of our six months notice period, and replaced with a new British Bill of Rights setting out the rights, freedoms and responsibilities of British citizens.

But the first step — giving notice to Strasbourg — could be done at the stroke of a pen.

I wish the UK would do it now. 

Not only is it the right and necessary thing to do, it is also the politically expedient thing to do. I would love to see the Labour party campaigning on a platform of reversing the process. Instead of taking back control, they’d be handing it back to Strasbourg.

Good luck to Sir Keir Starmer trying to convince the British public that we should allow a foreign court to dictate our migration policy and prevent us from deporting foreign murderers, rapists, and terrorists.

Yet any campaign to leave the ECHR must be pursued from a place of principle, not of desperation. 

Regrettably, the UK government doesn’t have the political will to take on the ECHR and hasn’t laid the groundwork for doing so. 

It’s therefore no surprise that recent noises in this direction from the Prime Minister are being dismissed by the public as inauthentic. 

It must also be said that any attempt by the Government to include a plan for ECHR withdrawal, or a promise to hold a referendum on the question, in a losing Conservative Party election manifesto, would likely set the cause back a generation.  

Before concluding, I’d like to emphasise that departing from the ECHR does not mean turning our back on international cooperation and sliding into a mentality of Little Englanders. 

Britain outside of the ECHR should be every bit as committed to the defence of Ukraine against Putin’s barbarism, alongside our international partners. British jets should still take to the skies to help defend Israel from genocidal Iran, alongside our international partners. As far as foreign policy goes, true conservatives must always stand up to terrorists and defend an international rights based order.

But those rights must be legitimate and fundamental rights, rooted in reason and the language of treaties.

Rights radicalism and the ECHR has politicised, delegitimised, and consequently undermined a foundational component of liberal democratic society.

Rights are not just dry terms of law. They are expressions of moral identity. Of who we are and what we stand for as a nation. When a person is unjustly imprisoned, or crushed by oppression — we feel a deep emotion rise within us. 

That emotion is a longing for truth, justice and fairness. It is a deeply conservative longing, and also a natural human longing. I am proud of the UK’s history of protecting fundamental rights. 

It is one reason why I was motivated to become a Barrister — to play a small part in our great justice tradition. Magna Carta, the Bill of Rights, the right to a fair trial, habeas corpus, the right to privacy, freedom from torture, freedom of religion, freedom of expression, abolishing slavery, extending the franchise in 1928 to women. We achieved all this before the ECHR was ever dreamt of — and we will maintain it all long after it’s gone. 

But until the ECHR is gone — until rights radicalism is rolled back by governments — the UK and much of Europe will continue to be incapable of properly securing our borders, protecting our communities, and delivering the will of our people. 

Ultimately the choice is between the ECHR or parliamentary democracy. 

We can either keep our borders under control, or keep the Convention. 

We cannot keep both.  

Now is the time to choose.

This piece has been adapted from a speech at NatCon Brussels 2

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