Judgment call: the case for leaving the ECHR

The debate about the European Convention on Human Rights is in danger of being diverted into irrelevant byways. Hostility to the convention has become a trademark of the right wing of the Conservative party, which invites unnecessary partisanship. This is unfortunate, because the United Kingdom’s adherence to the convention raises a major constitutional issue which ought to concern people all across the political spectrum. It is far more important than Suella Braverman’s battles with boat people and ‘lefty lawyers’. Yet so far, the debate has rarely risen above the level of empty slogans, meaningless mantras and misleading claims.

One point should be made at the outset and never overlooked: we do not need the European Convention on Human Rights in order to protect human rights. Many of the rights which the convention proclaims were part of British law long before the convention was conceived. There is nothing in it that we cannot enact by ordinary domestic legislation. We can have whatever rights we want if there is a sufficient democratic mandate for them. The real purpose of the convention is to make us accept rights whichwe may not want and for which there maybe no democratic mandate.

No responsible critic of modern international human rights law proposes to do away with fundamental rights. The case is that the convention should be replaced with a domestic code of basic rights which would look very like it, with one important exception: it would not be subject to the jurisdiction of the European Court of Human Rights (ECHR) in Strasbourg.

That exception is important because the real problem is not the convention but the Strasbourg court. Under Article 32 of the convention, the ECHR is the sole judge of its own jurisdiction.