Andrew Tickell: UK's focus on the ECHR is a sign of a dying government

It’s nothing if not unoriginal. Unelected euro-judges from Liechtenstein and Luxembourg are insisting that Britain house thousands of foreign criminals in luxury style, routinely overruling common-sense policies such as housing asylum seekers in plague ships before dropping them off in central Africa, having curbed costly extravagances like due process, effective legal representation and respect for fundamental rights.

In his first speech as Prime Minister, Rishi Sunak said his government would have “integrity, professionalism and accountability” at every level.

This week, senior members of his party have suggested asylum seekers should “f***" off back to France” if they have any complaints about the quality of the legionella the UK Government has provided on their barge. Forget the adults. The nativist oiks are in charge now – and they’ve identified the ECHR as their latest wedge issue to attack the next General Election with.

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The reality is that the UK lost just two cases in Strasbourg last year, representing a UK Government success rate before the court of more than 98%. The idea of a war on British justice is just the latest victim-fantasy this terminal Tory government has added to its long list of imagined persecutors and persecutions, from the “war on motorists” to the “war on woke”.

One of the arguments being rolled out this week to justify rolling back our human rights is old-fashioned British exceptionalism. The respectable case for leaving the ECHR suggests that the European Convention on Human Rights was intended to tutor emerging democracies in civil liberties in the wake of the moral and political catastrophes of the 1930s and 40s – but old and established states like Britain had nothing to learn about the importance of upholding fundamental rights. To believe this requires ahistorical priggery or dumb ignorance about recent British history. Conveniently, there’s currently a wheen of that about.

The Convention has been with us since 1950. Drafted in the wake of the Second World War, it focuses primarily on civil and political rights: there’s the right to life and the right to be free of inhuman and degrading treatment – there’s free expression, freedom of thought and religion, fair trials, the protection of liberty, privacy (and the right to property too).

For decades, litigants in British courts couldn’t rely on these rights. Unless you could fit your case under one of the thin and generally deferential common law grounds of review – illegality, irrationality, procedural impropriety – you had no way of vindicating basic rights at home. Having been knocked back by British judges, your only hope was to post a letter to Strasbourg, wait six years and see what happened.

The rights framework made a difference. In the 1970s, it took the ECHR to call out the treatment meted out by British security services to interned, untried men in Northern Ireland.

In the absence of enforceable human rights, Britain had a legal culture of arbitrary power, judicial deference to the executive and to police forces exercising vague, inaccessible, undefined common law powers. There was effectively no legislation governing police use of wiretaps, listening devices and surveillance before these arbitrary powers were challenged on Convention grounds. The idea the common law represented or represents any kind of equivalent protection to judicially-enforceable civil and political rights is moonshine.

Journalists felt it too. If investigative journalists want to protect their sources, it is the ECHR they have to rely on.

Just last month, Rishi Sunak (below) formally apologised in the House of Commons for the decades-long ban on gay people serving in the British Armed Forces. Between 1967 and 2000, the UK effectively operated a “don’t ask, don’t tell” regime. Official Ministry of Defence policy decreed that “homosexuality is incompatible with service in the Armed Forces” and that recruits who “are known to be homosexual or who engage in homosexual activity” should be administratively discharged as a matter of course.

Soldiers, sailors and pilots who fell under suspicion of having same-sex relationships found themselves rounded up by the military police, their private diaries seized and read, interviewed under caution and dishonourably discharged. We know this because several of them sued in the 1990s – first in UK courts, then in Strasbourg – arguing this policy was unlawful.

The English courts – queasily – upheld the lawfulness of the policy on the basis that it wasn’t for judges to second-guess the rationality of government policy. But faced with an argument rooted in the right to privacy of your home life and correspondence, Strasbourg ruled in favour of the men and women who had been investigated, questioned and dismissed, deciding the policy violated their Convention rights. The UK Government – which defended these cases to the hilt in the 1990s – now agrees the policy was fundamentally unjust. So much for the UK having nothing to learn about civil liberties.

That’s your bad history. Now on to the bad politics. The Conservatives have what might charitably be described as a credibility gap on human rights reform. Across four terms of Tory-led government, under five different prime ministers, for almost 20 years, tackling the Strasbourg court and uprooting Labour’s hated Human Rights Act(tm) has been a Messiah policy for the Tories – always promised but never appearing.

A condensed timeline: In 2006, it was David Cameron who was “drawing an early battle line” for the 2010 General Election by pledging to replace the Human Rights Act with a “British Bill of Rights”.

The LibDem coalition kiboshed it. When the coalition kiboshed itself in 2015, the election of a Tory majority gave Cameron the opportunity to make good on his manifesto pledge to “scrap Labour’s Human Rights Act” and “curb” the jurisdiction of the European Court. This never materialised either.

Accelerate through the time tunnel to the General Election of 2017. The Tories have held their Brexit referendum. Cameron’s contemplating his duck pond in Oxfordshire. Theresa May is prime minister.

She argued that “now is not the time” for revisiting Scottish independence. The same went for human rights reform. Beset by difficulties getting any kind of Brexit deal through the Commons, she temporised, pledging not to “repeal or replace” the Human Rights Act or leave the jurisdiction of the Strasbourg court “for the duration of the next Parliament”.

May lost her majority in 2017, leaving her at the mercy of the Democratic Unionist Party and the European Research Group, ultimately ending her premiership, her Brexit deals unsigned.

Boris Johnson (below) was installed in her place. Cutting against the John Bull bluster you might have expected from the new incumbent, the Tories’ 2019 manifesto blandly promised to “update” the law on human rights, repeating the usual nostrums about foreign criminals and rebalancing individual rights and the public interest. As Johnson’s deputy PM, in June 2022, Dominic Raab introduced a British Bill of Rights Bill.

But his proposals fell in and out of the UK Government’s agenda as Raab fell in and out of successive governments. When the Johnson regime collapsed under the weight of its gross moral turpitude, Raab backed Sunak during the leadership campaign. The victorious Liz Truss banished Raab to the darkness – and his bill was banished with him. Human rights campaigners breathed an overhasty a sigh of relief – they didn’t realise Truss was serving out her term in supermarket salad years.

When Sunak took up the short-assured tenancy on No 10, Raab and the Bill of Rights were briefly back, until his tyrannical approach to personnel management in the Ministry of Justice got him chewed out by the government’s ethics inspector and spat out the UK Government once again. In June this year, his successor Alex Chalk read the last rites on this version of the British Bill of Rights, and the Human Rights Act survived its fifth Tory PM largely unscathed.

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This is an awkward catalogue of failures to defend. The political analysis is even more simple. Pledging to repeal the Human Rights Act and denounce the jurisdiction of the European Court is an opportunity to get the Brexit gang back together. It is the kind of policy to get the gammons vascular.

But fundamentally, is a sign of political weakness. Confronted with the uncongenial realities of “taking back control”, deprived of the old tabloid diversion of telling tall tales about Brussels bureaucrats and their zany regulations, last week’s revived focus on the ECHR reads like desperate escapism from a dying government – semi-catatonic, wracked by paranoia, batting away phantoms.