Alexander Bowen: What happens if find public support for leaving the ECHR isn’t there?

Alexander Bowen is an MPP-MIA student at SciencesPo Paris and St Gallen specialising in public health, and a policy fellow at a British think tank.

There is this idea that come June 2032, presumably Thursday June 24th to maximise sentimental impact, that the country three years into a new Conservative government will have just voted to leave the ECHR.

That in departing, the right will have been reunited, the crisis on Britain’s borders fixed, and the sovereignty of the people finally restored.

That two years later, after the success of the referendum and the government’s withdrawal and implementation of its revolutionary liberties, and thanks to the stark Brexit-era electoral cleavage the vote recreated, a second Johnsonian majority will be delivered.

But the narrative of a second Brexit neglects three things: the low salience of the issue, the risk, and the relevant and effective alternative. 

The salience argument should be relatively clear – though salient with the Conservative membership it simply isn’t with the public. Few – just 20% blame lawyers and judges for the failure to tackle illegal migration – and fewer still believe the ECHR should be a policy priority. 

When voters are prioritising the NHS, the cost of living, and immigration, arguing about the ECHR, though it touches on all of those, risks looking out-of-touch and unlike free movement, the chain of reasoning needed to argue the ECHR’s impact on each of those policy areas is far more obscured and clearly less salient.

Attempts then at recreating a Brexit cleavage won’t work – for the public won’t wear it.

Coalescing the minority referendum position might have worked for the SNP in 2015, and coalescing the majority of the majority’s position for Boris in 2019, but both were near existential questions for the future of the UK. The ECHR is not and it cannot be. Even if it were, there remains the risk of a 2017 election with both poles coalescing.

The risk here then is twofold both that nothing will change if there is a departure, given so many of the most inappropriate cases of judges abrogating the clearly political into the judicial are domestic in nature and legal basis, and the risk of the country remaining.

The question that must be answered by any Conservative MP seeking a referendum on departing the ECHR is what happens if the renovated ‘remain’ campaign wins?

Though it may be hard for some to believe, the public are not only largely disinterested in the issue of the ECHR, but non-supportive of departure. Indeed, the net support for departure in opinion polls is between -31 and -22, whilst that gap would naturally close in a referendum, even when asked in a partial push-poll about immigration and the ECHR specifically, net support for departure remains negative.

The question then is what happens if 2016’s Leave campaign’s success is not repeated, because it needn’t be, and Remain thus wins?

Would the Conservative government accept the result and in doing so leave Reform as the only representative of the, let’s say, 45% of the country and two-thirds of Conservative voters who supported departing? 

Would the Prime Minister, having made it a staple part of their agenda, by say binding cabinet members to it, feel the need to resign? Or would the government continue to insist on leaving the ECHR and in doing so legitimise the argumentation of the continuity 2016 Remain now 2032 Rejoin campaign on ‘merely advisory referenda’ and ‘the right to rethink’?

Would it subvert the will of its people?

In the case of a large victory for remaining in the ECHR then what? If a vote for Leave is a mandate for departure what is a vote for Remain? A popular mandate for the ECHR including its worst excesses? That is certainly what it would be branded as in some quarters. A large enough victory for remaining in the ECHR could well be the starting point for a rejoining the EU with Labour or the Liberal Democrats taking it as their starting point for re-saliencing Brexit.

What I find odd then is why a Conservative government would want to run that risk – not least when there is an option that delivers the same espoused benefits of ECHR departure without said political drawbacks (and without the risk of terminating the UK-EU trade agreement, extradition agreements, or undermining the Good Friday Agreement). 

The solution, though it will not feel as procedurally satisfying for some as leaving, has far greater odds of successful delivery (given a parliament only process). It is to legally rebuke the living instrument doctrine of the ECHR. This doctrine created by the ECHR itself, and not by the member states, has been fundamental in many of its worst cases. 

The recent KlimaSeniorinnen decision, that undermined both Switzerland’s popular sovereignty and the structure of emissions reductions provided for in the Paris Agreement, was built on that living instrument doctrine. Here the ECHR erroneously stretched Article 8, that is “the right to respect for private and family life, home and correspondence” (ie a right to privacy), using that doctrine, to rule Switzerland’s climate laws unlawful.

It would be one thing if the UK or Switzerland, whose democratic institutions have overwhelmingly rebuked the decision, had signed up for an ECHR ‘right to emissions reductions’ but it is entirely inappropriate that a right states did sign up for can, through a doctrine they did not sign up for, be used to create a right they did not sign up for. 

It is right to be bound by your commitments, but it is inappropriate for the UK to be bound by judgements based on rights it never ratified, and that increasingly have little relevance to the text, that have been created by a standard the UK and the judges it has nominated have consistently opposed (including the lone dissenter in KlimaSeniorinnen). 

A new domestic legal arrangement abolishing any interpretational effect of 1978’s living instrument doctrine, the basis of nearly every controversial case be it on deporting foreign criminals or prisoners’ voting, where parliament has not explicitly ratified the interpretational change would be the starting point. 

Clearly delineating, and providing devolved governments with, a Canadian style notwithstanding clause would be a start (it could for example have saved Birmingham City Council from bankruptcy) as would working with other ECHR-members (Italy and France being particularly keen) on returning the ECHR’s interpretation to that of what was agreed.

Rather than trying to run a referendum campaign on ‘abolishing human rights’ (though of course it would not), a clear legal doctrine can be put forward and adopted that, in saying we will do only what we have agreed, can deal with the genuine issues of the ECHR without negatively polarising the kind of LibDem-Tory seats needed to win. 

In setting a Conservative ECHR-policy then we need to conceptualise political efficiency – that is what is our average net policy payoff when considering the odds of success and how much political capital need be expended to achieve it. Good politics then is what is politically efficient – you might not like how it feels given it is certainly less exciting but governing is about outcomes not entertainment. 

So long as a better outcome can be achieved at a lower cost, leaving the ECHR will remain bad politics.

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