6 February 2023

It’s absurd to claim leaving the ECHR would make Britain a ‘rogue state’


It’s an open question whether or not there are ever good days for the KCs of Twitter; few of us are at our best on the platform at the best of times, and it has done more to expose the clay feet of those professions, such as law or academia, who were not previously in the professional habit of sharing their thoughts on the news on a daily basis.

But yesterday was another bad one, and the man of the hour was Chris Daw – “lawyer, writer, broadcaster, legal commentator” – who declared that: ‘Britain will become a rogue state in human rights terms if we leave the ECHR’.

Rogue state? The term commonly used to describe Iran, North Korea, and other regimes more or less entirely at odds with the global order and guilty of regularly perpetrating atrocities against their own people and their neighbours? 

Easy to dismiss as yet another example of the ‘hysterinflation’ of political rhetoric, of a piece with David Lammy comparing Brexiteers to Nazis; part and parcel of the desperate need of certain Western progressives to imagine for themselves more heroic circumstances. But Daw then followed it up with this gem:

‘It’s not the only one but it’s the only one that we have. And it works. And I trust the collective wisdom of the entire EU more than that of the transient living at Number 10.’

At the risk of being pedantic – and come on, we’re dealing with lawyers – the European Convention of Human Rights is not an institution of the European Union; in fact, as Yuan Yi Zhu points out:

‘The European Court of Justice has refused to allow the EU to sign the ECHR because it would, and you’re going to laugh, infringe the EU’s own legal order.’

The stuff about “collective wisdom” is dubious too, even if re-written in territorially and institutionally accurate terms; the Council of Europe is not a parliament, and whilst diplomatic effort can bring political pressure to bear on the Court, ultimately the only collective wisdom at the heart of the Convention structures is that of a pool of judges.

But it’s Daw’s overall sentiment that is more interesting. It reveals a worldview in which the Prime Minister, the head of this country’s elected government, answerable to Parliament and, indirectly, to the people, becomes ‘the transient living in Number 10’. Transience, a product of the fact that the UK is a democracy and power changes hands on a regular basis, is presented as a flaw.

Now, a lot of the arguments advanced by some Conservatives about quitting the ECHR are not very good, not least where they blame our membership of the Convention for problems which are actually down to the operation of the Human Rights Act, a piece of domestic law.

But amongst the stronger are those, somewhat ironically, that echo the EU’s position: that membership of the ECHR (and thus the jurisdiction of the Court, which did not actually exist when we signed the Convention) subjects us to a source of law that sits outside the UK’s sovereign constitutional order, and thus outside its democratic order too. Daw seems to agree with the facts of that case, albeit drawing very different conclusions.

As for the ‘rogue state’ idea, it is extremely parochial. The ECHR is, as the name implies, not a global institution. Most nations are not signatories to it, and it is hard to see the value in a definition of ‘rogue state’ which included the UK and, say, Canada.

Those seeking to salvage such a definition sometimes try to employ a deliberately parochial frame, pointing out that leaving would put the UK alongside Russia and Belarus as the only nations in Europe that weren’t signatories. But in terms of the practical application of human rights, there is no reason for ‘in Europe’ to matter, and any actual consideration of the reality of how each country is governed – to say nothing of Turkey, which is a signatory – reveals that any common thread that links the UK, Russia, and Belarus is simply not indicative of very much.

Yet this kind of fake comparison remains a popular tactic. Last week, broadcaster Sandi Toksvig posed opposite Parliament and tweeted:

‘There are only two countries in the world where representatives of the state religion automatically get seats in Parliament. They are the UK and Iran.’

Another specious connection between Britain and an actual rogue state. This bit of trivia apparently makes it imperative that we remove the Lords Spiritual from the House of Lords, on the basis that it’s bad that we share a category with Iran. But again, the analysis doesn’t go anywhere. Tehran is ruled by a vicious, bloody-handed theocracy; the strictures of the ayatollahs’ interpretation of Shia Islam form the basis of the entire government. 

The Church of England, on the other hands, sends 26 representatives to what the Lords’ critics are usually fond of reminding us is the second-largest legislative chamber on Earth. Even if the bishops were minded to start hanging gay men from cranes, such sentiments wouldn’t get turned into law. And – and this would be important in any serious analysis – they’re not.

When it comes to issues of government, society, human rights, or any of the substantive issues these campaigners supposedly care about, the United Kingdom is not Russia, Belarus, or Iran, and the only thing demonstrated by any criterion that lumps them together is that it doesn’t indicate anything important.

The boring but happy truth is that political debates in Britain, even the really divisive ones, are played for what in historic terms are very low stakes.

The democratic and constitutional issues raised by our relationship with the EU and the Council of Europe matter, as do those of trade and governance. But those struggles are not about preventing this country turning into the next Russia, because that is simply not going to happen. Nobody is trying to do it, any more than they are trying to rebuild the Empire.

I have a rule that in such debates, the presence of the word ‘modern’ usually signals that one is about to be presented with a fashion statement rather than an argument, and a similar sentiment seems to animate the above complaints. We don’t want to be stuck sharing a cafeteria table with Vladimir Putin and Alexander Lukashenko, or get caught wearing the same trivial accessory as Ebrahim Raisi.

George Orwell wrote that we were ‘perhaps the only great country whose intellectuals are ashamed of their own nationality’. It’s as true now as it was then; to many, the embarrassment of Britain treading the boards of the world stage wearing last season’s constitution seems to be very real, and eclipses any appreciation of either its constitutional history or beneficent political character. 

Most people grow out of the adolescent imperative to conform, and into the self-confidence needed to take their own decisions and wear their quirks with pride. The same ought to be true of nations too, and we should not allow ours to be regressed by people for whom the most terrifying words in the English language are: ‘You can’t sit with us!’

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Henry Hill is Deputy Editor of ConservativeHome.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.