Always Crashing in the Same Car
Why Brexiters Hate the ECHR
Some years ago I learned of the existence of a belief system called Breatharianism, whose adherents claimed to be able to live without food or water. This wasn’t just fasting. To be a Breatharian meant that you literally didn’t consume anything except oxygen, and you trained your body until it was able to like, just breathe man, as Jeff Bridges would say.
At first I thought this must be an urban rumour, but it turns out that some people have actually claimed to be able to do this, and some have died attempting to do it.
Why, I wondered, would anyone want to live like this? Being a vegetarian or a vegan is one thing, but living on air? Was it the same longing for ‘purity’ that you can find in New Agey scams like Gloop or in certain sections of the anti-vax movement?
Was this desire to escape the constraints of the flesh due to some quasi-religious impulse? Or could it be that Breatharians, like Kafka’s hunger artist, just couldn’t find any food they wanted to eat?
What has this got to do with Brexit? Bear with me. In 2017 the Financial Times compared Brexit to a Melanesian cargo cult. This isn’t actually a bad analogy, but I can’t help thinking that there is something distinctly Breatharian about the headlong pursuit of absolute sovereignty by Brexit hardliners, and their unwillingness to engage in any relationships with the European Union or any external institution associated with it.
Consider the current rumbling in the Tory Party and beyond with regard to UK’s membership of the European Convention on Human Rights. Tory hostility towards the ECHR is not entirely novel. As long ago as 2011 Theresa May presented the Party Conference with her infamous ‘cat speech’ as evidence of the supposed absurdity of the Human Rights Act - the vehicle through which the ECHR is translated into British law.
This intervention generated all the human rights-gone-mad headlines that it was intended to, and May wasn’t the only one to play at this game.
In 2013 Chris Grayling, the then-justice secretary (I know!) was at it again, claiming that the UK was looking to unshackle itself from an ECHR that had ‘lost its legitimacy’ in the UK.
In these early cynical interventions - generally made by Tory politicians looking to please the party’s rightwing base in order to boost their own profiles - we can see the same forces that helped pull the UK out of the European Union. Because the European Convention on Human Rights is often confused with the EU in the minds of rightwing voters, even though the two are not connected, and too many Tory politicians have no interest in making this clear.
Tory antipathy to the ECHR should be surprising, given the backing that none other than Winston Churchill once gave to the formation of a European Convention on Human Rights and a European court to enforce its provisions.
Never Again
The idea of a ‘Council of Europe’ that would promote democracy, human rights and the rule of law and also create a legal instrument to bind member-states to its founding principles was first mooted during World War II by Churchill himself. In 1949 the Council was established by ten states, with strong British support, and its lawyers immediately began to draw up what Churchill called ‘a Charter of Human Rights, guarded by freedom and sustained by law.’
Among the architects of the charter that became the European Convention on Human Rights was the Conservative MP and lawyer David Maxwell-Fyfe, a former deputy British prosecutor at the Nuremberg trials, who also helped draft the United Nations’ Universal Declaration of Human Rights.
On the one hand the ECHR was a specifically European contribution to a wider commitment to enshrine human rights in national and international law after the horrors of the previous two decades, which also included the UN Declaration of Human Rights and the 1951 Geneva Convention on the Status of Refugees.
At the same time, British backing for the Council of Europe and the ECHR were given new impetus by the onset of the Cold War. For Churchill and his contemporaries, the creation of a ‘rights-based’ democratic bloc with legally codified moral values was not just an attempt to say ‘never again’; it was also intended to differentiate Western Europe from Stalinist practices in Eastern Europe, and provide a model that countries under Soviet occupation could aspire towards.
The result was the ECHR - a legal instrument with than 34 articles and protocols that members of the Council of Europe were intended to observe and implement within their national legislatures. Its provisions included prohibitions on slavery and forced labour and the use of torture, guarantees of freedom of assembly and association and the right to life, and a common obligation to respect human rights.
From the wars of decolonisation to Europe’s brutal treatment of refugees in the 21st century, European states have often looked to evade this rights-based framework or ignore its provisions in their treatment of ‘outsiders’ or colonial subjects, but at no point has any democratic government actually considered abandoning the ECHR altogether.
And the Convention has frequently proved its worth, binding signatories to judgements made by the European Court of Human Rights in Strasbourg which oversees its principles in practice.
In the UK the ECHR paved the way for the prohibition on corporal punishment in schools and later on enabled a second inquiry into the Hillsborough disaster. In other countries the Court has also ruled on societal issues, from the protection of journalist’s sources and homosexual relations between consenting adults, to domestic violence and domestic slavery.
Such a legal framework amounts to a kind of ‘pooled sovereignty’ that is anathema to Brexiter purists. Some of them like to say that no country needs an international framework like this in order to enforce provisions that should fall within the remit of national governments.
This may be true, in theory. But membership of a shared body of human rights legislation makes it more likely that such principles will be upheld. And the existence of a European court also provides a second ‘court of appeal’ that individuals can turn to when these commonly-agreed rights are breached.
This is why the Russian Federation was allowed to join the Council of Europe in 1996, despite Russia’s weak democratic institutions.
It’s also why Russia ceased to be party to the ECHR in September last year, because it didn’t want the ECHR to be an impediment to Putin’s tyranny. At that time Russia had failed to fully implement 2,129 judgements and decisions against it from the European Court of Human Rights, in addition to another 17,450 applications against Russia that the Court had not yet processed.
From a democratic perspective therefore, being a signatory to the ECHR, means that you agree to be part of a progressive legal framework that defines not so much the European Union, but Europe itself.
Given these aims, and given the strong Conservative role in the creation of the Council of Europe, the question inevitably arises as to why the British government has now suggested that the UK might have to leave the Convention that its predecessors helped to create.
Why has Nigel Farage, the Nag’s Head Churchill, announced that leaving the ECHR is ‘the new Brexit’ and called for a referendum on ECHR membership?
The most obvious answer is immigration. Long before Brexit the idea that European ‘nonsense about human rights’ was preventing the UK government from deporting ‘foreign criminals’ who deserved to be sent back wherever they came from had become received wisdom in the Tory Party.
The outrage that such suggestions inevitably aroused dovetailed seamlessly into hard-right suspicions of ‘globalist’ institutions undermining national sovereignty and the UK’s ability to ‘control its borders’.
For Brexiters, if sovereignty means anything, it means the ability to throw people out of the country regardless of what anyone else thinks. Where Breatharians live without food or water, Brexiters would like the UK to subsist on sovereignty alone, devoid of any exogenous elements or restraints that might pollute the body politic and curtail their saloon bar instincts.
Last year the ECHR ‘proved’ that the UK’s sovereignty is not yet complete by blocking the deportations of migrants to Rwanda, a policy on which the Johnson, Truss, and Sunak governments have all hung what remains of their reputations.
This is why Sunak, in his usual slippery disingenuous way, has once again been dropping hints that the UK may have to leave the ECHR in its own ‘long term interests’, while his sinister Home Secretary promises to push the ‘boundaries’ of international law with regard to Channel boat crossings.
When so many of the other supposed advantages that come with their hard-won ‘freedom’ have vanished into the ether, ‘Rwanda’ has become the sum of Brexiter hopes and aspirations.
This is why Farage is getting stuck into the ECHR. It’s why Lee Anderson, within hours of becoming deputy chairman of the Conservative Party (I know!), threw in his ten cents, or rather 30p on this issue:
Anderson may not be well-versed in international law, but he could care less, because his ‘common sense’ appeals to the lowest common denominator, and these are the only voters the Tory Party has been bothered about for some time now.
By fusing the ‘stop the boats’ narrative with ‘leave the ECHR’, Brexiters hope to complete the perfect circle which they began in 2016 with Farage’s ‘invasion’ posters.
In equating the ability to enact the most viciously anti-immigration legislation with the chimera of untethered sovereignty, Brexiters hope to rouse their base into the state of perpetual outrage on which their own political survival depends.
Never mind the cruelty or the legality of the Rwanda policy, or the fact that their proffered ‘solution’ to the Channel crossings is only likely to involve a few hundred migrants at the most. Never mind that there is no demonstrable evidence that the Rwanda deportations will have any impact on ‘stopping the boats.’ Never mind that a Durham University report has found that Brexit itself is the main cause of migrant boat crossings.
The likes of Farage, Anderson - and Sunak - don’t care about any of this. They want a new cause celebre because they have nothing else. The more conspiracy-minded might think that scrapping the ECHR and the Human Rights Act is intended to pave the way for a new legislative race to the bottom.
Some Brexiters may well have that aspiration, but I suspect that very few of them have actually thought this through in the longer-term. For the time being, the prospect of a ‘referendum on the ECHR’ is more likely to be yet another wedge issue to divide the country and rally the troops, while also distracting from their multiple failures.
In other words, to ‘save’ the country from ‘illegal’ immigration that Brexit itself has increased exponentially, Brexiters are now preparing to abandon a legal framework that their own political predecessors helped to construct, and they are presenting this aspiration as another sign of ‘freedom’.
If all this seems a little sordid, disgraceful, counterproductive and downright mad, no one should really be surprised, because this is what the pursuit of absolute sovereignty can do to mid-sized countries that get too big for their boots.
It makes them poorer and weaker, economically and also morally, as they try to live on thin air, pursuing an illusory sovereignty that is unconnected to anyone or anything, even as their vital organs break down and, starved of nutrition from outside, they begin to eat themselves.