The first time as tragedy, the second as farce

Suella Braverman's plans for leaving the ECHR display the same arrogant and reckless disregard for the consequences - particularly in Ireland - as did the plans of Brexiters for leaving the EU.

It is perhaps an implicit acknowledgement of how little attention the campaigners for Brexit paid to the actual mechanics of leaving the EU, and how disastrous that lack of attention turned out to be, that those same campaigners, now agitating for the UK to leave the ECHR, are at least trying to think through the mechanics of doing so.

The Prosperity Institute's paper that addresses that issue is of the quality one would expect from a paper authored by Suella Braverman, Boris Johnson’s former Attorney General, whose advice on the international law implications of his government’s proposals to legislate to breach the Ireland/Northern Ireland Protocol (now the Windsor Framework) that Johnson had only just signed was almost universally regarded as hopeless. The paper has not been improved by the apparent assistance of Lord Frost, the UK’s former ambassador to Denmark, and the man whose negotiating skills led the UK into two of the three international treaties that the paper now spends much energy trying to wriggle out of.

The GFA

The first obvious roadblock to the UK’s exit from the ECHR is the Good Friday Agreement (GFA), which is (for present purposes) a treaty between Ireland and the United Kingdom – one which, perhaps fortunately, Lord Frost had no role in negotiating. The problem lies in the fact that the GFA includes a term requiring the UK to incorporate the ECHR into the law of Northern Ireland.

Braverman’s paper mounts a somewhat desperate attempt to argue that that reference is “descriptive” rather than “prescriptive”, or that it would not prevent the UK from removing the ECHR from Northern Ireland law after having incorporated it: but she clearly (and rightly) has little faith in her own argument, since she goes on to argue that the GFA should be “modified” in order to remove those awkward references to the ECHR. However, in drawing attention to the various modifications that have been made to the GFA since 1998, she somehow fails to mention the crucial point that all of those modifications were agreed to by Ireland – as is of course essential to any change in an agreement involving Ireland as well as the United Kingdom.

The Withdrawal Agreement

Her paper then turns to the Windsor Framework (part of the Withdrawal Agreement between the UK and EU negotiated by the Johnson government of which she was an enthusiastic member). After repeating the canard that the Windsor Framework is contrary to the GFA (forgetting to mention that the UK Supreme Court ruled to the contrary in Allister and Miller 1), she grudgingly acknowledges that as it stands the Windsor Framework would also preclude the UK from removing the incorporation of the ECHR into Northern Ireland law.

Braverman’s “solution”

How to deal with this problem? After a certain amount of beating about the bush, her paper eventually accepts that amending the GFA cannot be a “blunt or unilateral exercise” but “must be sequenced, consultative, and anchored in political legitimacy.” However, that acceptance is no more than a veneer: what is actually proposed is a blatantly “unilateral exercise” which has no intention of being “anchored in political legitimacy”. Thus, when confronting the problem that “some” (i.e. a majority of) Northern Ireland political parties would oppose removing the ECHR from Northern Ireland law, the paper simply states that in that event the UK government would just go ahead anyway by legislating over their heads. (Braverman takes the same approach to the likely objections from the other devolved governments, proposing that the UK Parliament should simply override the convention that it should not normally legislate on devolved matters without their consent – the so-called Sewel convention, which the former Attorney General’s paper manages to spell correctly 75% of the time.)

In relation to Ireland, the paper states that “Ireland would … be required … to recognise the U.K.’s sovereign choice and the adequacy of its rights regime”. It is not clear how the paper proposes to “require” Ireland to recognise any such thing: Braverman appears to forget that Ireland is a sovereign state whose own constitution includes extensive human rights provisions precisely because the authors of that constitution (not exactly bleeding heart liberals) were well familiar, in most cases from direct personal experience, with the inadequacy of the English common law as a source of human rights protection.

In the end, her paper simply states that as a matter of UK domestic law, Parliament is free to legislate to remove the ECHR from Northern Ireland law whatever the UK’s international obligations may be. But that simply repeats the gaping hole in her 2020 advice on the lawfulness of the Internal Market Bill: although that is indeed the position in domestic law, that is not where the problem lies. The problem lies in the fact - which she effectively concedes by ignoring it - that her proposal would be a clear and serious breach of the UK’s international obligations under the GFA, a treaty with its closest and most intimately bound neighbour and which has provided the foundation for the peace settlement on the island of Ireland. It is too kind to say that Braverman’s insouciance about the political consequences of that is due to ignorance: ignorance on that scale can be attributed only to a pigheaded determination not to understand anything, or care anything, about the complex and tragic history of British involvement in Ireland or about the current politics of the island.

As for the Windsor Framework (negotiated, in its former name of the Ireland/Northern Ireland Protocol, by Lord Frost), Braverman’s paper implicitly accepts that without the agreement of Ireland there is no prospect of the EU agreeing any change to the Windsor Framework that would allow removal of the ECHR from Northern Ireland law. She therefore proposes that the UK should simply unilaterally withdraw from the Windsor Framework (forgetting to mention that that would actually mean withdrawing from the whole of the Withdrawal Agreement negotiated by the Johnson government, and on the basis of which “oven-ready deal” she and her colleagues fought the 2019 election).

The TCA

Such a step would almost certainly lead the EU to exercise its rights to withdraw totally from Lord Frost’s other negotiating triumph, the UK/EU Trade and Cooperation Agreement. One might think that the very serious economic implications of that might trouble a body calling itself the Prosperity Institute, were one not aware that it is in fact a deeply ideological pro-Brexit knitting circle. In any event, Braverman’s paper simply ignores those inconvenient consequences.

Because the TCA would probably collapse anyway on Braverman’s plans, her paper’s examination of the particular provisions of that agreement that allow the EU to suspend part of it if the UK were to leave the ECHR is slightly redundant. However, it is nonetheless surprising to find a former Home Secretary and self-styled champion of law and order sounding quite so relaxed about the termination of provisions that enable information sharing about criminal investigations and extradition of those who have committed, or are alleged to have committed serious offences. Breezy assurances that such provisions could be renegotiated from outside the ECHR fail to grapple with the importance that all of our neighbours place on the ECHR as a basic guarantee of a minimum standard of human rights that underpins cooperation in matters of such sensitivity to their own citizens.

Defending the ECHR

Braverman’s attempt to deal with the mechanics of leaving the ECHR is therefore entirely unpersuasive. In the end, she implicitly acknowledges that the price of withdrawal is likely to be complete disruption of our trading and security relationships with our closest neighbours, as well as of the peace settlement in Northern Ireland.

During the Brexit referendum Braverman and her friends were able to get away with a wholly incomplete and implausible account of how the UK would leave the EU and what its implications would be. One of the tasks of those who want to defend the UK’s continuing membership of the ECHR to our fellow citizens will be to remind them of how badly those people’s promises played out last time.

That said, a defence of the ECHR has to be about more than the difficulties of leaving. Rather, a positive case has to be made about the role that the ECHR plays in allowing ordinary citizens to challenge aspects of the law, and official decisions, that seriously impinge on what almost everyone accepts are basic human rights: a role that the common law, for all its virtues, never succeeded in playing. That case needs to concentrate on the way in which citizens have been able to use the ECHR to (for example) secure the equality of sexual minorities, to defend journalism, to require the state properly to investigate cases where its actions have led to people dying.

That such a case has a good chance of succeeding, if made strongly and clearly, is shown by the feebleness of Braverman’s attacks on the ECHR. She ignores all those examples of the ECHR helping ordinary citizens in favour of the familiar exaggeration of the ECHR’s impact on asylum claims, policing, and the armed forces, and complaints – displaying a certain amount of cognitive dissonance – that the ECHR has been interpreted as a “living instrument” applied in ways that its drafters would not have anticipated while simultaneously complaining that the ECHR is stuck in the 1950s and unfit for today’s world. Displaying equal cognitive dissonance, she also tries simultaneously to argue that development of the law is somehow a good thing when done by UK judges applying the common law but a bad thing when done by the Strasbourg court (or by UK judges applying the ECHR).

In the end, what Braverman’s paper does succeed, magnificently, in doing is demonstrating the fundamental weaknesses of the case for leaving the ECHR. The ECHR’s defenders need to take every opportunity to hammer away at those weaknesses. At the end of the day, ECHR leavers want to put all of our fundamental rights entirely in the hands of government ministers and bureaucrats. And their breezy assurances about the consequences of leaving are quite as ill thought-through and deceptive as the promises made by the same people about the consequences of leaving the EU. As the old saw puts it: “fool me once, shame on you; fool me twice, shame on me”.