Dominic Raab has gone, but the evil ideas he propagated live on after him. The latest Conservative proposal to give ministers the power to disregard any interim judgments of the European court of human rights is a culmination of the assault he has led on human rights for years. And it is indeed ironic that the minister who has done most to undermine human rights in recent years leaves office complaining bitterly that his own have not been properly recognised.
Britain will never be quite like the Israel sought by Benjamin Netanyahu, who wants to make the judiciary hostage to the government of the day. Nor are we the US of recent times, where supreme court judges are too often chosen on party political lines. Instead, the UK is famed across the world for its independent judiciary and for championing the rule of law, not least because of our involvement in the authorship of the European convention on human rights (ECHR), which came into force almost 70 years ago, on 3 September 1953, and was lauded as defining what we stand for as a country by every prime minister from Winston Churchill on – except for the past five.
But how do we now characterise a country in which the explicit duty in the ministerial code that the government complies with international law has been removed, and unprecedented new guidance has been given to government lawyers to proceed with drafting legislation, even if there is a high risk of a successful legal challenge. For the government cannot state that the illegal migration bill is compatible with the convention. Indeed, experts say it breaches it in three ways: failing, as required, to identify victims of modern slavery before their return to their country of origin can be considered; failing to investigate and prosecute the perpetrators of this offence; and now, failing to abide by interim judgments of the European court. The result we are witnessing is quite grotesque: the so-called party of law and order itself undermining the rule of law.
For at least a decade, the Conservatives have had their guns targeted on the European convention. In 2013, David Cameron told Andrew Marr that leaving the ECHR might be necessary to “keep our people safe”. In 2016, Theresa May advocated remaining in the EU but withdrawing from the ECHR. Both their successors, Boris Johnson and Liz Truss, joined by two recent home secretaries, Priti Patel and Suella Braverman, have called for the UK to depart; Braverman asserting, with little evidence: “There are 100 million people around the world who could qualify for protection under our current laws,” and that she had to act because “they are coming here”.
A Downing Street source recently admitted that the new legislation pushed “the boundaries of what is legally possible while staying within the ECHR”, but then added that Rishi Sunak would be “willing to reconsider whether being part of the ECHR is in the UK’s long-term interests”. In doing so, No 10 set the stage for a Conservative election manifesto that will take us far beyond pledges to strip asylum seekers of their rights of appeal, house them in inferior accommodation and deport them not just to Rwanda, but to Turkey and other countries. It is now not beyond possibility that, despite the foreign secretary’s statements this week, the next Conservative manifesto will state that they may have no choice but to withdraw from the ECHR on the grounds that the European court – not the government – is the offending party for not giving a green light to the UK’s blatant abuses of established rights. And even that would not be the end of the matter.
The context in which this assault on human rights has been mounted by Raab and his colleagues is clear, if not always explicit. All the slogans, ranging from “take back control” and “get Brexit done” to “stop the boats” and “send them home” floated under Cameron, Johnson, Truss and now Sunak are sending a xenophobic message that, even after cutting ourselves off from the European Union, Britain does not enjoy enough “independence” to be able to privilege the “us” who have rights against the “them”, who have none. It reflects a view of sovereignty as indivisible, unlimited and accountable to no one but them and their prejudices – and completely out of touch with our modern, socially interconnected and economically integrated world, where everyone’s independence is qualified by our interdependence.
And so, we can imagine that the ECHR is not the last international institution to be in the Brexiteers’ line of fire. Already we have ministers repudiating the UN refugee convention, which Britain pioneered in 1951, and the UNHCR condemning the current migration bill because it “extinguishes the right of refugees to be recognised and protected in the UK”. After that may come the convention on the rights of the child and other international treaties that run counter to this absolutist view that we cannot enter into international obligations.
So before it is too late, it is time to defend the European convention on human rights – not as a necessary evil but as an emancipating force for good – and remind people that it is, and remains, our last line of defence for upholding the right to a fair trial, to peaceful assembly, to family life and not to suffer degrading or inhumane treatment. To uphold basic rights, we need to intensify the fight against the poisonous geopolitical vandalism, led by Raab and fellow ministers, that lies behind the desire to destroy the ECHR. We need to remind people once more that the convention originated in the aftermath of the unspeakable horror of the Holocaust, in the demand for a “never again” world, and in the recognition we cannot always rely, as history has shown, on national safeguards of human rights.
Withdrawal would mean consequences beyond the Good Friday agreement requirement that the ECHR be honoured in Northern Ireland. The 2020 trade and cooperation agreement (TCA) allows for the EU to retaliate in the event of changes related to “democracy, the rule of law and human rights”. Europe could end cooperation on law enforcement and hard-fought agreements on extradition and access to the database of biometric data, including fingerprints and DNA, thus inflicting more potential harm than any current legal changes to our country’s security and our citizens’ safety.
So as Raab exits, Britain is at a crossroads. Even if we stay inside the ECHR, we are deliberately undermining it from within by reneging on our long-established obligations and giving comfort to the backsliding of Hungary, Poland and Turkey, while also destroying any credibility our country has long enjoyed in criticising the disregarding of human rights across the world. But our concern should not be restricted to the violation of rights: we should also be righting wrongs. And so we need to stand up for what the ECHR has achieved and, instead of marching under the banner of authoritarian populists, we need to lead the fight for an international order based on the rule of law and not the law of the jungle.
Gordon Brown is the UN envoy for global education, and was UK prime minister from 2007 to 2010
