“When such qualities have been given a chance to flourish in the ground which you have cleared, a great step will have been taken. This would be a step towards universal recognition that:
,Sights and sounds, dreams as happy as his day,
And laughter learned from friends, and gentleness,
peace in the hearts…,
It is not the prerogative of any one country. They are the inalienable heritage of mankind.”
Those lines are taken from Rupert Brooke Soldier, and they encapsulate the motivations of the work when Maxwell Fyfe drafted the European Convention on Human Rights – that seminal charter now maligned by some factions of the Conservative Party as an antiquated, foreign imposition. They perhaps forget that Maxwell Fyffe was a career Tory politician, serving as Churchill’s Attorney General and Home Secretary.
Churchill gave his speech on the future of Europe: “There is one measure which … in a few years will make the whole of Europe … free and … happy. It is to rebuild the European family, or as much as we can.” and to provide it with a structure within which it could live in peace, security and 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 looming large over the values on which post-war victors had hoped to establish a post-war peace.
In May 1948, Churchill attended a meeting of the Congress of Europe in The Hague, which brought together hundreds of parliamentarians, business leaders, trade unions and others to discuss a new European political union. Churchill asked Maxwell Fyfe to help draft the Charter of Rights, and with a group that included Pierre-Henri Tietjen, the jurist and former French Resistance fighter, he drafted the 1948 United Nations Universal Declaration of Human Rights. Made an inspired list. Maxwell Fyfe’s contribution was such that he has been described as “the doctor who delivered the baby”.
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 was 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 does not belong to the European Union as a whole, and of all Europe’s countries, only Russia and Belarus are not members – Russia was expelled after its invasion of Ukraine and relations with Belarus were suspended. And yet, there are those in the current Conservative Party who urge the UK to return to the ECHR. As with so many concerns of the current Tory party, it all comes down to immigration.
Simon Clarke, MP for Middlesbrough South and East Cleveland, was Chief Secretary to the Treasury under Liz Truss when she presented 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 into the UK illegally this year,” he wrote on Twitter this week. “The Home Office already has thousands of people living in hotels, spending £7m every day. MPs who refuse to leave the ECHR need to tell us if our plans to abolish it are blocked So what is the alternative.
Clark 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 eliminate our need to be able to defend our sovereign borders.” And if we say otherwise, the public will be rightfully angry.
Recent newspaper reports suggest that Sunak would be prepared to pull the UK out of the ECHR if it went against his plans to “stop the small boats”. This objective is one of the Prime Minister’s five stated pledges for his time in office. Sunday Times reported that Sunak could take action if the European Court of Human Rights finds his new immigration bill – expected to be introduced soon – to be illegal. The newspaper quoted a source close to Sunak as saying: “If this law gets into the statute book and is found valid by our domestic courts, but it is still being held in Strasbourg, we know that the problem is not our law or our courts. If so, he would certainly be willing to reconsider whether it is in the UK’s long-term interests to be part of the ECHR.”
Dr Joel Grogan, a senior researcher at the UK in a Changing Europe, says withdrawal from the ECHR will not be simple, either legally or politically. As a first step, the UK government must repeal the Human Rights Act of 1998, which makes the ECHR effective in the UK. It will do so by an Act of Parliament and then it must inform the Council of Europe of its intention to withdraw. Politically it is unthinkable.
“Not only will there be backlash from the opposition and devolved legislatures, where the ECHR is far more integrated into legal systems and holds a stronger power – particularly in the context of Northern Ireland – but there is also strong Tory back bench opposition to the idea that the UK would place itself alongside Russia and Belarus as European countries outside the scope of the ECHR,” Grogan said. The House of Lords would also oppose such a move, especially since it was not in the 2019 Tory manifesto.
Despite recent press speculation, many analysts believe that no action is likely to be taken on ECHR membership before the next election, when the prospect of a return may figure in the Tory manifesto. But even that will be a hard sell across party lines.
Grogan said, “To be very clear, and I think my views will be shared by a lot of my colleagues, this is political grandstanding.” “It is not serious, no bill is being introduced and we are not taking real steps.” It looks like an “attempt to appeal to the wing of the party interested in withdrawing from the ECHR”.
Grogan also notes that there is a widespread lack of understanding about what the ECHR actually does. “The ECHR does not give the power to strike down an Act of Parliament in Strasbourg or any national court. It is not legally possible,” she said. A UK court can only declare an Act of Parliament to be ‘inconsistent’ with the right, which signals to Parliament that it should consider changing the law, which it usually does.
The new immigration bill, the brainchild of Home Secretary Suella Braverman, says refugees who come to the UK outside official channels will not even be allowed to claim asylum. Migrants will be allowed to appeal only once they have been deported.
At the Tory conference in Birmingham last year, Braverman described the ECHR as: “an institution that was born out of the post-war era, which is consistent in the way it operates, which has centralized power, which has been politicized, pushing an agenda that is contrary to our politics and our values.
Braverman’s views suggest that she may have been behind the story that Sunak was considering evacuation. The European Convention has been in Braverman’s sights since its court blocked the first deportation flight to Rwanda last June. Still, Braverman hasn’t given up on his “dream” of seeing a plane to Rwanda as part of a deal agreed last year to send thousands of migrants to the African country.
He and others will argue that it is the ECHR that is preventing him from achieving that dream. Grogan says there is nothing in the ECHR that prevents deportation. It only needs the process to be valid. Last June, the Strasbourg court ruled that Britain had to give a legal hearing to those subject to deportation.
“The concern was that if they go to Rwanda they will have no or equal access to the courts to ensure their rights are protected. (The decision) wasn’t that you can’t be deported. It was that unless you You can’t be deported unless domestic rights are fully considered… so now it’s back with the UK courts,” she said.
Part of Sunak’s job is to keep the ultra-Brexiters of the European Research Group (ERG) happy. Alarmed by reports of a deal on the Northern Ireland Protocol, the argument goes, they must be persuaded that Sunak is indeed one of them.
But on the ECHR, Sunak’s room for whim is severely limited – the Good Friday Agreement which supports peace in Northern Ireland depends on the underlying legal structures of the ECHR. With delicate negotiations over post-Brexit trade protocols on a knife edge, and the United States looking badly outnumbered, Sunak will surely be reluctant to disturb such a delicate balance.
For Maxwell Fyfe himself, the Convention offered hope during dark times – surely something that should be grudgingly done by a country that sees itself on the side of the oppressed in times of war.
Perhaps Sunak and his team should consider the words of Maxwell Fyfe at the time of the signing of the Convention in 1950: “Some might say that it is of dubious value that democratic nations should strengthen individual liberty among themselves and that authoritarian states should be left untouched. We do not accept this pessimistic view. We believe that our light will be a beacon to those in totalitarian darkness at this time and give them hope for the return of freedom.