If you think Keir Starmer is rattled by Reform’s awkward-squad views on human rights, spare a thought for Kemi Badenoch. In a speech today obviously aimed at Conservative voters thinking of defecting to Nigel Farage with his unapologetic call to leave the European Convention on Human Rights (ECHR), she will announce that the Tories too are indeed deeply unsatisfied with the convention, and are determined to do something about it.
So far so good. Listen further, however, and you see not so much as a position taken as an exercise in bet-hedging. Rather than going full-on for withdrawal, she is – you guessed it – setting up a committee, albeit one embodying the ‘sharpest legal minds’. One can see why she has chosen a non-committal managerialist solution like this. Unfortunately, there is every indication that Kemi’s scheme will turn out to be a damp squib.
On the ECHR, Kemi is caught between a rock and hard place
The first difficulty is that, while many issues lend themselves to committee-style compromise, ECHR membership is not one of them. The tension is inescapable between applying the ECHR on the one hand and, on the other, preventing human rights encroaching in an undemocratic way on everything from border control to legal attacks on Northern Ireland veterans and climate change. The rights to life – to humane treatment and privacy – see to that. In no way restricted, as they ought to be, to genuinely outrageous state action, they have been expansively interpreted by the European Court of Human Rights to control even entirely incidental and unintended effects of government policy. The ECHR now amounts to a serious quasi-constitutional obstacle to the ability of an elected parliament to do what its voters want. Today, you can have faithful adherence to the rules promoted by Strasbourg, or a democratically responsive administration, but not both.
Secondly, although the ECHR is part of our law, its interpretation and development lie not with Westminster, but with Strasbourg. And Strasbourg, for better or worse, has reached a position which makes efficient immigration control and other law enforcement very difficult in the face of those determined to flout it.
This immediately puts Kemi’s committee in a bind. A recommendation to do nothing and preserve the effect of the ECHR in UK law will lead to the Tories looking weak and ineffectual and the electorate seeing them as Labour lite. Short of withdrawal, however, any measures that had any worthwhile effect in curbing ECHR excesses in our courts would sooner or later end up in Strasbourg anyway, thus returning the party to the unenviable choice between staying in the Strasbourg system and submitting to its controls, or upping sticks. Only a full-blooded recommendation to leave, echoing the similar promise from Reform, would solve the Tories’ problems.
Unfortunately, it seems unlikely that this will happen, or if it does, that it will be followed through. True, the committee is to be headed by Lord Wolfson, who is both very sharp and encouragingly ECHR-sceptic. True also that several Tory big beasts, such as Robert Jenrick, have made their position absolutely clear.
But the shadow cabinet do not all share this uncompromising stance. Kemi herself, despite sharing (one suspects) Jenrick’s exasperation with Strasbourg’s antics, has been too cautious to commit irrevocably to any such thing. For that matter, even some rightists such as James Cleverly have at times sat on the fence. If push comes to shove, is the enthusiasm there to back full-fat Leave? One rather doubts it.
Furthermore, there are political shoal waters here. Admittedly most right-leaning voters, especially those in the just-about-managing class, see little attraction in the ECHR and the smug progressives behind it, and would not be unhappy to see us leave. But the Tory party in parliament is another matter.
As any lobby correspondent will tell you, parliamentary conservatives remain seriously fissured on the ECHR issue: not as badly as over Brexit, but still divided. Surprising numbers embrace the patrician position that the international human rights system is generally beneficial and that it would look bad for the UK to leave it. And they think strongly about it. It was reported in March that a group of them had discreetly made it known that they would actually leave the party if it plumped for ECHR exit. The Tories cannot afford this, and they know it.
Kemi’s committee will be only too well aware of all this and of the equal undesirability of sparking a new Tory civil war. The betting must be that any report, while not quite as drearily anodyne as the 2021 report from the committee appointed by the previous government under Lord Justice Gross, will end up with a slightly mushy fudge which will do no good to Tory chances or morale.
On the ECHR, Kemi is caught between a rock and hard place. She will need all her considerable sagacity to find a way out of this bind. For the sake of the Conservative party, we can only hope she does.
