Both left and right have shifted on the issue of the European Court of Human Rights
Talk of Britain leaving the European Convention on Human Rights (ECHR) has been a popular viewpoint on what used to be, until relatively recently, the fringes of the right wing for a considerable period of time. As the Overton window’s shift to the right has quickened like a bullet train passing by on the opposing rail track, we have ended up in a situation where even the Labour Home Secretary, Shabana Mahmood, said (as Justice Secretary) it is limiting the ability of the government to deport foreign criminals. Senior politicians are finally admitting that we may have to withdraw from this superfluous diplomatic framework.
However, many believe that we can’t leave by simply flicking a switch in Westminster, saying no deal is better than a bad deal, and leaving it at that. Some have pointed out that attempting to leave the ECHR may mean having to revisit the Belfast Agreement, the peace settlement which, when brought into law through the Northern Ireland Act 1998, ended a decades-long conflict and created the devolved power-sharing government in Northern Ireland.
For once, a debate on sovereignty has edged closer to honesty about the situation we, as a nation, find ourselves in
This is a complex issue, as the Agreement is regarded in principle as a piece of UK legislation, through the Northern Ireland Act existing “for the purpose of implementing the agreement”, as well as being an international treaty, through the British-Irish Agreement, and a political agreement between Britain, Ireland, and several Northern Ireland political parties. The Belfast Agreement is very much part of the foundational architecture of Northern Ireland.
It was Suella Braverman, the former Home Secretary, who was the first senior politician recently to highlight the perceived difficulty of leaving the ECHR while the Belfast Agreement remains in its current form. She, and her allies at the Prosperity Institute, released a detailed report in July which stated that, in order to leave the ECHR, the Government must “Amend the Belfast Agreement, also known as the Good Friday Agreement (GFA), the Northern Ireland Protocol, and the Windsor Framework”. As I wrote recently, Northern Ireland is still paying a heavy price for Brexit being carried out without adequate provisions for the complex circumstances of Northern Ireland. It would appear that Braverman, who was Parliamentary Under-Secretary of State for Exiting the European Union, does not want to make the same mistake twice.
Unlike how some may have wanted to have achieved Brexit, her report with the Prosperity Institute accepts that such a task would involve detailed diplomacy: negotiation with the Irish government; extensive talks and compromise with the myriad parties in Northern Ireland; the potential for fresh referendums, perhaps on both sides of the Northern Irish border.
Nigel Farage picked up on this recently, stating at a news conference at the end of August that, were his party in Government, they would look to renegotiate the Belfast Agreement in order to assist with their plan to stop the boats. Sammy Wilson, a longstanding Member of Parliament from the Democratic Unionist Party in Northern Ireland and close friend of Farage, stated that he agreed with such a suggestion, saying that a renegotiation of the Belfast Agreement would be “essential for many reasons”. Unionists have naturally been suspicious of anything which would set Northern Ireland apart from the rest of the United Kingdom, as they fear that any divisions may act as precursors for questions about Irish reunification.
Yet, into this emerging consensus stepped Jack Straw, one of the architects of the 1998 settlement in his role as Labour’s Home Secretary at the time. A recent study by Policy Exchange, which has been backed by Straw, has argued that “whatever the merits of UK withdrawal from the ECHR, nothing in the Belfast Agreement rules it out as a viable course of action”. Another of the report’s proponents, Lord Alton of Liverpool, currently Chair of the UK Parliament Joint Committee on Human Rights and formerly a Liberal Party spokesman on Northern Ireland during the Troubles, compares getting wound up in this kind of prohibitive thinking by alluding to Don Quixote tilting at windmills. Importantly, neither Straw nor Alton are in favour of withdrawing from the ECHR, but neither of them believe that the Belfast Agreement would pose any kind of proscriptive issue with doing so.
By way of showing this, the report highlights that of the two constituent parts of the Belfast Agreement, the British-Irish Agreement does not mention the ECHR at all, while the multi-party agreement does not show that the ECHR provides anything for Northern Irish domestic law that the Northern Ireland Government could not easily provide for themselves if they so wished.
This intervention matters for several reasons. Firstly, it would theoretically make it substantially easier to leave the ECHR if, as should come to pass, it is found that doing so would be beneficial to the United Kingdom. Secondly, and importantly, it refutes absolutely any claims, such as those said recently by Claire Hanna, leader of the Social Democratic and Labour Party, that the state of peace in Northern Ireland would be thrown into jeopardy by doing so.
Despite this, removing the potential barriers provided by the Belfast Agreement does not remove the political difficulty associated with this now that the cat is out of the bag. Legal scholars may be right that clever drafting of a devolved Bill in Northern Ireland could adequately substitute for any provisions of the ECHR, but politically any move which, to outsiders ignorant of the finer details of the legislation and Agreement, may appear to aim to water down rights protections in Northern Ireland will likely be seen as reopening the settlement. As much as the trite law matters, the optics of said law matter to the public more.
For once, a debate on sovereignty has edged closer to honesty about the situation we, as a nation, find ourselves in. Braverman, Farage, and the DUP have, from the right, acknowledged that leaving the European Convention on Human Rights will be a difficult task, made more difficult by the Belfast Agreement. From the other side of the divide, former Liberals and Labour men have reminded us that such a woolly document is not untouchable, and can easily be superseded, if not ignored in its entirety, in these circumstances. Taken together, these views move the conversation well and truly into the mainstream, sending that Overton window ever farther along. The real question is whether the toolmaker’s son will pick up his spanners in Government and get to work.
