At the Conservative party conference last week, all four leadership candidates decided that the pernicious influence of the ECHR should be removed from our law. It was their scapegoat for the immigration policies they have found so difficult to put into practice. A video by the smarmy Robert Jenrick claimed that the SAS were forced into “killing rather than capturing” terrorists for fear of detainees being released under European human rights law. This is because living terrorists have human rights, whereas dead terrorists certainly don’t have the one labelled ‘right to life’.

The others blamed the ECHR for the small boats problem. Apparently we have to treat them as human beings simply because of the ECHR. To be unable to send them back to wherever they originally came from is because of their human rights. What a disgrace that they can’t be simply loaded onto a plane and flown back to be welcomed in their home countries, such as Syria, Sudan, Yemen or Lebanon. What an attack on our sovereignty!

The candidates all though want a British Bill of Rights instead of the ECHR, but, like Reform UK, without saying which of the ECHR rights we currently enjoy would be excluded. It seems that they have not yet decided on the small print.

But among the political parties of the right in France there also seems to be a growing movement against what is represented by the ECHR. There is now a call for what is, in effect, the excision of its tentacles from the French constitution. And not just by Mme Le Pen. M. Retailleau, France's new interior minister has backed holding a referendum designed to give the government more power to control immigration as he seeks to restore "order".

He admits though that the constitution does not allow the holding of such a vote because of a ruling in April 2024 by France’s ‘Conseil Constitutionnel’. It ruled that such a referendum would represent “disproportionate infringement” upon the rights of legally resident foreigners and could not take place in the framework of France’s current constitution, one which incorporates the ECHR.

On Sunday, Retailleau, speaking to Le Journal du Dimanche, said, "the rule of law is neither intangible nor sacred.” “It is a set of rules, a hierarchy of norms, judicial control and a separation of powers. But the source of the rule of law is democracy, the sovereign people.” In other words, he thinks that constitutions should not be able to get in the way of the will of the people. As with most politicians, he presumes to know the will of the people, even though his party came a poor 5th in the last election.

Mr Retailleau's appointment as interior minister is of course widely seen as a gesture to appease the far right. The president of the Assemblée Nationale, in contrast, said on Monday: "When the situation is tense, when there are crises, the rule of law must not be called into question.” Former president Nicolas Sarkozy (recently convicted of corruption) though said: "immigration is a problem" and France needed to "change everything".

In a typically French way, Le Monde has provided us with an analysis of the situation based on Greek mythology – the play by Sophocles about Antigone and Creon. Now I have to admit that that particular story passed me by when I was in school. Perhaps I was reading about Captain Biggles and his daring-do with his Sopwith Camel instead. But it seems that the source of the conflict between the two of them was the tension between personal morality and the laws of the state.

Antigone, the daughter of Oedipus and Jocasta, defies the law of the king of Thebes, Creon, in order to bury her brother Polyneices, who was killed in battle against his own city. Antigone displays an unwavering commitment to her familial duty and to the gods, even in the face of opposition from the law of the state. Creon exhibits a resolute adherence to the law in order to maintain order and stability for the peace of his state.

So then, the story of the conflict between Antigone and Creon is based on a fundamental conflict between man's law and a supposed higher law. The question is: where does the authority that law claims to have over us come from? For man's law, the authority for it is man and the institutions that he creates. But that higher law? The claim for its authority is less clear. It can be said to be based on conscience, religion, duty, morality, or somehow to be a ‘natural law’. All good when we believed in a higher authority. Not so obvious now.

The argument both here and in France is that constitutional rights are a barrier to what they see as the change in the law required to deal with, mainly, immigration. Not only, however, are we signatories to the EHCR, but also to the Universal Declaration of Human Rights adopted by the United Nations in 1948 and the 1951 Refugee Convention. Are we going to join Russia and other similar states in rejecting the whole concept of human rights?

And in any event our own Supreme Court decided that the Rwanda scheme (for which many Tories still hanker) was illegal, based upon British law rather than international treaties.

So what is to be done? Strangely, we have already done quite a lot without coming up against the strictures of the ECHR. This is because legal theory tells us that governments should have a ‘margin of appreciation’ in how they interpret human rights. The thing is that human rights are often in conflict with each other. I may claim freedom to do as I will, but you will claim a right not to be unduly prejudiced by my actions. And so the State can, within reason, decide where the boundaries should lie and legislate accordingly. And this has been done, both here and in France.

In France, there was much fuss over the obligation not to cover your face in public places and here there is a ban on masks being worn by those taking part in demonstrations. But in both countries, there has also been a lot of tightening up of the law relating to terrorism, demonstrations and the definition of public disorder, again without interference from any of the courts, although subject to lots of criticism at each stage from the ‘liberal left’.

And what would actually happen if the protections given to us by the ECHR were removed? We’re still waiting for the £350 million per week Brexit dividend to show up at the Treasury. Not only will an exit from the ECHR not cure immigration problems, but, like the false promise of Brexit, this additional false promise will produce yet more disillusion in our democratic process. This is particularly so amongst the younger demographic by whom democracy is not held in high regard in any event.

But those most vigorous in their support of human rights consider that they exist independently of other laws and so risk bringing them into disrepute. Indeed, those who framed human rights considered them to be based on ‘natural law’ – a secular version of ‘god-given’.

To overcome this disconnection with reality we need to remind ourselves of the real reason for their creation. It was in the aftermath of WW2 and the horrors uncovered at the Nuremberg trials. The avoidance of a repeat of those appalling events seems to me to be a convincing justification for the existence of human rights – providing it’s explained clearly and often by those in power.

Which is why we would be well advised not to support the creation of more and more ‘inalienable’ human rights having no real foundation in the original thinking behind the ECHR. It may well be desirable, for example, for individual countries to commit to provide rights to internet access or clean water to their citizens. But if we universalise them then this may give further motivation to those already unhappy with ‘human rights’ to push back against the entire concept. ‘Human Rights’ are already spoken of in the same breath as “Elf and Safety gone mad”.

Better to content ourselves with existing core rights and leave any expansion of those ‘rights’ to democratically decided national law in the normal way.

6th October 2024

Paul Buckingham