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The Tories vs Churchill

Winston Churchill took Britain into the European Court of Human Rights – why do some in the party want to take us out of it?

Photo: Leon Neal/Getty

Having spent months prosecuting Nazi crimes in Nuremberg, including a masterful cross-examination of Hermann Göring, David Maxwell Fyfe, the Scottish lawyer and Conservative MP, was finally able to raise his eyes from the horrors of the Holocaust. The question was how European society could be rebuilt around the universal values of tolerance, decency and kindliness.

In 1946, Britain’s deputy chief prosecutor had told the Nuremberg trials:

“When such qualities have been given the chance to flourish in the ground that you have cleared, a great step will have been taken. It will be a step towards the universal recognition that:

sights and sounds, dreams happy as her day,

And laughter learnt of friends, and gentleness,

In hearts at peace…

are not the prerogative of any one country. They are the inalienable heritage of mankind.” 

Those lines are taken from Rupert Brooke’s The Soldier, and they encapsulate the motivations at work when Maxwell Fyfe drafted the European Convention on Human Rights – that seminal charter now vilified as an antiquated, alien imposition by some factions of the Conservative Party. What they perhaps forget is that Maxwell Fyfe was a career Tory politician, serving as Churchill’s Attorney General and Home Secretary.

Churchill delivered his own speech on the future of Europe: “There is a remedy which… would in a few years make all Europe… free and… happy. It is to recreate the European family, or as much of it as we can, and to provide it with a structure under which it can dwell in peace, in safety and in freedom. “ Speaking in Zurich he told his audience: “We must build a kind of United States of Europe.”

And so the vision of an international charter of rights rose from the rubble of war, even as another threat loomed in Europe’s east. An iron curtain was already overshadowing the values on which the wartime victors hoped to build the post-war peace.

In May 1948, Churchill attended a Congress of Europe meeting in The Hague that brought together hundreds of parliamentarians, business leaders, trade unionists and others to discuss a new European political union. Churchill asked Maxwell Fyfe to help draft a charter of rights, and with a group that included Pierre-Henri Teitgen, the jurist and former French resistance fighter, he drew up a list inspired by the 1948 United Nations Universal Declaration of Human Rights. Maxwell Fyfe’s contribution was such that he has been described as the “doctor who brought the child to birth.”

The resulting European Convention on Human Rights (ECHR) was opened for signature in 1950 and Britain was one of the first states to ratify it. It came into effect in 1953, and is enforced by the European Court of Human Rights in Strasbourg.

Covering the 46 states of the Council of Europe, the Convention protects basic rights, including the right to life and liberty, the right to a free trial and freedom of expression. It is entirely unrelated to the European Union, and of all Europe’s nations, only Russia and Belarus are not members – Russia was expelled after the invasion of Ukraine and relations with Belarus were suspended. And yet, there are people in the current Conservative party who urge Britain’s withdrawal from the ECHR. As with so many of the current Tory party’s concerns, it all comes down to immigration.

Simon Clarke, the MP for Middlesbrough South and East Cleveland, was Chief Secretary to the Treasury under Liz Truss when she introduced her “Mini-Budget”. Clarke is one of a group of Conservatives arguing that Sunak should withdraw from the Convention. 

“Criminal gangs will bring 65,000 people to the UK illegally this year,” he wrote on Twitter this week. “The Home Office already has tens of thousands living in hotels, spending £7m each day housing them. MPs ruling out leaving the ECHR need to tell us what the alternative is if our plans to end this are blocked.”

Clarke continued: “We all hope that the Government’s plan to end migrant crossings can be delivered within the ECHR. But membership of a convention does not trump our need to be able to defend our sovereign borders and the public will rightly be outraged if we say otherwise.”

Recent newspaper reports suggest that Sunak would be willing to take the UK out of the ECHR if it rules against his plans to “stop small boats”. This objective is one of the prime minister’s five stated pledges for his time in office. The Sunday Times reported that Sunak could take action if the European Court of Human Rights found his new immigration bill – expected to be tabled shortly – to be unlawful. The paper also quoted a source close to Sunak saying: “If this legislation gets onto the statute book and is found to be lawful by our domestic courts, but it is still being held up in Strasbourg, then we know the problem is not our legislation or our courts. If that’s the case, then of course he will be willing to reconsider whether being part of the ECHR is in the UK’s long-term interests.”

Dr Joelle Grogan, a senior researcher at UK in a Changing Europe, says withdrawal from the ECHR would not be simple, either legally or politically. As a first step, the UK government would have to repeal the 1998 Human Rights Act, which gives effect to the ECHR in the UK. It would do this by an act of parliament and it would then have to inform the Council of Europe of its intention to withdraw. Politically, this is inconceivable. 

“Not only would there be rebellion from the opposition and the devolved legislatures, where the ECHR is far more integrated into the legal systems and holds a stronger power – particularly in the context of Northern Ireland – but also on the Tory back benches there is strong opposition to the idea that the UK would be placing itself with Russia and Belarus as European countries outside the scope of the ECHR,” Grogan said. The House of Lords would also oppose such a move, particularly since it was not in the 2019 Tory manifesto. 

Notwithstanding the recent press speculation, many analysts agree that no action is likely to be taken on ECHR membership before the next election, when the prospect of withdrawal could feature in the Tory manifesto. But that too would be a hard sell across the party. 

“To be very candid, and I think my view would be shared by a lot of my colleagues, this is political grandstanding,” Grogan said. “It’s not serious, there is no bill being tabled and we’re not seeing real steps being taken.” It looks like an attempt “to appeal to the wing of the party that is interested in withdrawing from the ECHR.”

Grogan also notes there is a widespread lack of understanding about what the ECHR actually does. “The ECHR does not give any court in Strasbourg or any national court the power to strike down an act of parliament. That is not legally possible,” she said. A UK court can only declare an act of parliament to be ‘incompatible’ with a right, signalling to parliament that it should consider a change to the law, which usually happens.

The new immigration bill, the brainchild of Home Secretary Suella Braverman, is expected to state that would-be refugees who arrive in the UK outside official channels will not even be allowed to claim asylum. Migrants would also only be allowed to appeal rulings once they have been deported. 

At the Tory conference in Birmingham last year, Braverman described the ECHR as: “An institution born out of the post-war era which is a bit analogue in the way that it operates, which has centralised power, which is distant and which is politicised, which is pursuing an agenda which is at odds with our politics and our values”.

Braverman’s views suggest that she may have been behind the story that Sunak was considering withdrawal. The European Convention has been in Braverman’s sights since its court blocked the first deportation flight to Rwanda last June. Still, Braverman has not given up on her “dream” of seeing a plane take off for Rwanda under a deal agreed last year to send tens of thousands of migrants to the African country.  

She, and others, would argue that it is the ECHR that is preventing her from achieving that dream. Grogan says there is nothing in the ECHR that prevents deportation. It just requires the process to be lawful. Last June, the Strasbourg court ruled that the UK had to give people subject to deportation a legal hearing.

“The concern was that if they ended up going to Rwanda they would not have the same or any access to the courts to ensure their rights were protected. (The ruling) was not that you cannot be deported. It was that you can’t be deported until your domestic rights have been fully considered… so that’s now back with the UK courts,” she said.

Part of Sunak’s job is to keep the ultra-Brexiteers of the European Research Group (ERG) happy. Alarmed by reports of a deal over the Northern Ireland protocol, the argument goes, they must be persuaded that Sunak is really one of them.

But on the ECHR, Sunak’s room is severely limited – the Good Friday Agreement that underpins peace in Northern Ireland depends on the underlying legal structures of the ECHR. With delicate negotiations over the post-Brexit trade protocol on a knife-edge, and with the United States looking on balefully, Sunak will surely be reluctant to upset such a delicate balance.

For Maxwell Fyfe himself, the Convention offered hope during dark times – surely something that should be vigorously championed by a country that sees itself as being on the side of the oppressed in tims of war. 

Perhaps Sunak and his team should reflect on Maxwell Fyfe’s words at the signing of the Convention in 1950: “Some may say that it is of doubtful value that the democratic nations should reinforce individual liberty among themselves and leave the totalitarian states untouched. We do not accept this pessimistic view. We consider that our light will be a beacon to those at the moment in totalitarian darkness and will give them a hope of return to freedom.”

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