Leaving the ECHR will probably seem like a walk in the park after Brexit

David Cameron first threatened to scrap the Human Rights Act and replace it with a ‘British Bill of Rights’ in 2007.  Almost a decade later the phoney war continues, with Liz Truss today correcting recent media misreports that the new Prime Minister Theresa May had ditched the plan.  It had been reported that proposals drafted by Truss’s predecessor Michael Gove didn’t go far enough for May’s liking (they did not entertain the possibility of the UK withdrawing from the ECHR, which she called for during the EU Referendum).  But May herself had also suggested that going far enough would involve too many political obstacles (which provided her reasoning during her leadership campaign for saying she would not pursue leaving the ECHR).

So where does this leave things?

I expect May and her strategists are keen to leave open the possibility of human rights reform because it continues to serve as a useful political pawn in negotiations with right wing Conservative backbenchers and in positioning with the media over Brexit.  While human rights advocates are always keen to stress that the ECHR and EU are entirely separate, politically they are joined at the hip.  If May – as a remainer – wants to pursue a ‘soft Brexit’ with freedom of movement the ongoing price of staying in the single market, it seems reasonable to expect human rights reform to come back centre stage as the ‘taking control of our borders’ initiative.  In her apparent positioning for the leadership prior to the Referendum, May already argued that:

“The ECHR binds the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of governments like Russia’s when it comes to human rights….So regardless of the EU referendum, my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its court.”

While proposals for human rights reform this side of Brexit may not advocate the immediate withdrawal from the ECHR, I expect careful wording will leave the possibility open as a ‘sunset clause’ and that promises may be made in private.   Post 2020, with May likely enjoying an increased Parliamentary majority, wanting to make her own imprint having spent four years implementing a policy she opposed, with Brexit under her belt but with a need to foster Party unity, facing a desperately weak and fragmented opposition, with Scotland marching towards independence, and with leaving the ECHR likely to score significant public and media support (if we held a referendum on the question next month, it seems fairly obvious what the conclusion would be), it isn’t unthinkable that May’s desire to withdraw from the Convention could materialise.  By then, as a political project it will probably seem like a walk in the park.









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