A Corrections Column

A Corrections Column

ECHR Building Strasbourg

There are some well-worn memes doing the rounds following the ECHR decision yesterday on deportation flights to Rwanda. Many contain a number of factual errors and so, like the very busy editor of the Guardian’s Corrections section, let’s shed some light on these.

  1. The government’s policy has been declared illegal by European judges.

No, it hasn’t. There will be a full court hearing in the English courts in three weeks time to assess the claims made by various appellants that the policy is unlawful. That is a very high bar to meet. In all the court hearings so far, the government has won. All the European Court on Human Rights has done is to grant an injunction preserving the status quo until that full hearing.

2. European courts only have power over the UK because – in the words of Douglas Murray – “this government has still only half-Brexit-ed”.

No – the ECHR is not an institution of the EU. Doing Brexit properly did not require Britain to leave the Convention. It was set up in 1949 and Britain was the first country to ratify it in 1951. It was promoted by Churchill and largely drafted by a Tory MP and former deputy prosecutor at the Nuremberg trials, David Maxwell-Fyfe. (That this particular untruth is being promulgated by Douglas Murray, author of “The War on the West”, a book complaining about Western politics, culture and traditions being under attack by its enemies but wanting to withdraw from a Convention in the same company as those other paragons of Western life – Belarus and Russia – only shows how superficial his attachment to the principles behind the West he promotes is.) The ECHR is, arguably, the 20th century’s version of Magna Carta – a statement that all, including rulers, should be subject to law and that rulers cannot and must not breach fundamental rights which adhere to every human being precisely because they are human beings. It is a principle which developed from what some rebellious barons did on a Surrey field in 1215 and is Britain’s greatest gift to the world. If any principle distinguishes the West from the rest of the world it is this.

3. Britain must withdraw from the Convention or renegotiate it to “the original limited concept of human rights ….to give post Nazi Europe the same rights and liberties as UK had enjoyed for centuries.” This is being spread by a number of Tory MPs in the 70-strong Common-Sense Group.

Three errors here: the original Convention was not limited. The rights contained in it are fundamental. It was not designed just for Continental Europe but also Britain. And, third, most Britons did not enjoy any or most of these rights at all, let alone for centuries. See, for instance, the prolonged denial of rights to British Catholics, the people of Ireland both before and after the Act of Union, the Highlanders after Culloden, women, Jews, the working classes and so on. Could we perhaps crowdfund remedial history classes for Tory MPs?

What is also worth pointing out is what rights were not contained in the original Convention. The protection of property, for instance; the right to education or to free elections with a secret ballot; the prohibition of imprisonment for debt; the expulsion of nationals; rights of appeal in criminal matters; not being tried twice for the same crime; compensation for wrongful conviction; prohibitions against discrimination and so on. Do Tory MPs really want the freedom to do all these things? Do they want a future non-Tory government, possibly a very left-wing one, free to seize property without compensation or adequate compensation, a matter reviewed by the ECHR in the 1970’s following the Labour Party’s nationalisation of shipping companies? Is there any Tory MP old enough to remember or look up the Tory party reaction at the time?

This particular grumble is usually accompanied by the complaint that the rights are not qualified or limited in any way. This too is untrue. They are qualified and states have a large margin of appreciation in how they implement them.

4. We’re British. We can’t be like those wicked Nazis or Communists. It is just ‘lefty’ lawyers causing all the problems.

Oh yeah. Who says? There is no permanent immunity against illiberalism or authoritarianism or a degradation of democracy. There is complacency and hubris. If Britain has largely avoided the fate of tyranny, it is because the structures which have been put in place to prevent this have been respected, strengthened and followed. Not undermined and got around because they place limitations on you just as they place limitations on your political opponents.

5. The asylum system is not fit for purpose. The Border Force is ineffective.

At last. Two statements with which pretty much everyone can agree. The asylum system is indeed not fit for purpose: it is underfunded, ineffective and unnecessarily complicated. Decisions and appeals take far too long. The Border Force are unable to protect Britain’s borders. Would it be impolitic to point out that in the last 43 years, the Tory party has been in power for 30 of them and for the last 12? If these systems are so useless, why hasn’t this been addressed? Might repeated cuts to the Border Force’s budget have something to do with this? Or to the justice system which hears asylum cases?

6. Opponents of the government’s policy on Rwanda deportations have no plan for boats crossing the Channel.

Half true. It is unclear what the policy of the Labour Party or the Lib Dems is on this. They had better grapple with this and come up with something more than simply criticism of the government’s policy. But it is not the job of lawyers, “lefty” or otherwise, or commentators to come up with policies. This issue is a difficult one: there are two aspects: (1) the “pull” factors; and (2) what to do with those who arrive. Really clamping down on the “black economy” in the manner done by other countries is one option, so far ignored by the government: allowing asylum claims to be made abroad rather than here another. Working with other countries to target people smugglers and agree on effective ways of deporting those with no right to be in the country yet another. That would involve working constructively with our immediate neighbours and being seen as a trustworthy government, which may be a problem right now. Perhaps even starting the hard work of updating the Refugee Conventions for our times, though that might prove embarrassing when it becomes clear how many fewer asylum seekers Britain takes than its peers.

The key point is that there are no magic answers. Devising and maintaining an effective immigration system which meets multiple and often conflicting needs involves a lot of hard work over years on multiple levels: diplomatic, criminal, policing, judicial and so on. Some of the measures will involve costs and disadvantages we may not want. Anyone saying otherwise is being misleading.

And it is also possible that in three weeks time the UK courts will rule that the government’s Rwanda policy is lawful. The government will be pleased, no? Unless it’s the fight it’s really spoiling for not the ability to send a few hundred foreigners to Africa.


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