Is it 2016 all over again? membership of a European institution is once again becoming the key dividing line within the Conservative Party. This time, it is leaving the European Convention on Human Rights which is forcing Tories to clearly stake out their camp.

The current leadership frontrunner, Robert Jenrick, has made leaving the ECHR a central part of his campaign, producing a punchy short video outlining why those who “want to deport foreign criminals, get terrorists off our streets, and end illegal migration” must join his crusade against the convention. The video starts by highlighting the cases of several foreign men convicted of crimes such as rape, murder and terrorism, all of whom have had their deportations blocked or frustrated by the ECHR.

This is a strategy I wrote about at the start of the year, where I argued that any campaign for leaving the ECHR ought to highlight the actual (bad) outcomes that the court is foisting upon Britain, and not get distracted by arguing over the (positively coded) contents of the convention. Jenrick’s video does exactly that, explaining the direct connection between terrorists being kept on Britain’s streets and the ECHR.

Jenrick’s video is a hint at where the real schism over the ECHR lies. The disagreement is not so much about the concept of “human rights”, or the utility of having a mechanism that bakes them into law; Jenrick is explicit in arguing that ensuring there existed the right to life, liberty and a fair trial across Europe was “a noble aim”. The divide lies in defining exactly what obligations those human rights should entail and what the acceptable cost of those obligations is. To put it crudely, what obligations do we have towards those we invite into our countries and who then repay that invitation by raping or murdering our fellow citizens? How far must we go in guaranteeing such people’s welfare? Do we have a right to forcefully disinvite them from our society?

The blowback to Jenrick’s pitch for leaving the ECHR has so far mostly avoided that debate, instead preferring to snipe at the edges about exactly how important the ECHR really is for dealing with illegal migration or in limiting military decision making. And perhaps Jenrick did overstate the centrality of the ECHR in addressing the issues he outlined — the ECHR is just one element of the broader post-War human rights framework that has hampered the state’s ability to deport those it deems a threat. Withdrawal from the ECHR will not be a silver bullet, and brings with it certain complications, such as jeopardising the current Northern Ireland settlement.

But even those who produced cutting takedowns of Jenrick’s video, such as former Conservative Attorney General Dominic Grieve, still slyly conceded that Jenrick’s key point — that the ECHR was blocking Britain from deporting dangerous foreign criminals — was correct. Grieve, though, seemed to think that even raising this fact was altogether too déclassé for somebody seeking to lead his former party. He contended that “sending a foreigner to a place where there is significant risk [of death or torture] is indeed contrary to the ECHR and may therefore be impossible. It is a question of what standards of behaviour you should expect from a civilised state.” In Grieve’s mind, the establishment of the ECHR means that the question has already been answered, that we have all agreed on how a “civilised” state must behave, and that the set of institutions and human rights frameworks set up in the immediate post-War period have ended the debate. “Human rights” have become neutered within this political lexicon to convey something perennial, neutral, and indisputable. 

But the world in which these frameworks were formed has long ceased to exist, and as abstractly neat and philosophically coherent as they may be, their contact with the world as it currently exists has led to outcomes that their original architects almost certainly did not envisage. The purpose of a system is what it does, not its purported aims, and what the system is doing is protecting some altogether despicable people at the expense of keeping Britain safe. This is the key point that underlined Jenrick’s argument for leaving the ECHR.

A useful heuristic for assessing the desirability of remaining in the ECHR is to look at the real-life outcomes of its application, and then ask if such outcomes are aligned or contrary to our national interests. This means looking at cases such as Joachim Cardos, who was convicted of rape, assault, and drug distribution whilst unlawfully residing in Britain. During his incarceration, the Gambian national was diagnosed with paranoid schizophrenia, temporarily sectioned, and put on medication. Upon completion of his sentence, he was transferred to an immigration detention centre and set to be deported back to Gambia. His removal was thwarted, however, after he launched a legal appeal on the basis that his deportation would violate Article 3 of the ECHR, which prohibits torture and degrading treatment or punishment. In essence, the risk that he would face “social stigmatisation” or end up admitted to Gambia’s Tanka Tanka Psychiatric Hospital were seen to justify his continued presence in Britain. To reiterate, this is a man who violently raped a woman at knife point. This is who the ECHR protected.

What we have in the ECHR is a political dispute in its purest form: an intractable disagreement over core principles where only one side can triumph

The test is thus a simple one: do you believe this man should remain in Britain? If the answer is no, then the ECHR is not fit for purpose. But perhaps someone like Grieve would argue that yes, Cardos should remain in Britain regardless of his heinous crimes, and that we have an obligation to protect his welfare. This would be a perfectly coherent position, though one which may not garner great political support. Equally, those who wish to leave the ECHR should be just as honest about the implication of the policies they support. Grieve could fairly ask of Jenrick “do you support these convicted rapists and terrorists getting tortured or killed in their homeland?”, to which the only coherent answer must be: “yes, that is a trade-off worth making in order to protect British people”.

What we have in the ECHR is a political dispute in its purest form: an intractable disagreement over core principles where only one side can triumph. Grieve and his fellow travellers believe we have a perennially binding obligation to shield those who come to our country to commit crimes from ill-treatment in their home countries, no matter the risks or costs this may pose towards us, whereas I, and I suspect Jenrick too, think that no such obligation exists. That is the key disagreement here, and it is one for which there is no clear compromise. So instead of sniping around the edges of the debate and falsely reducing it to a technical misunderstanding, we would be best served by hashing out the dispute openly and frankly. It is time for some proper politics.