BRITAIN is changing. In an era of mass migration, the failure to deport illegal migrants is undermining a key feature of what was once called the Post War settlement. The answer lies in a conservative reform of our relationship with the European Court of Human Rights and a clarification of what the Convention means for Britain.
For decades judges in Britain and Strasbourg have interpreted the convention with a broad construction, to place the rights of anyone in the UK potentially above the interests of the British people and its democracy. That is in the clearest sense unjust.
Britain is a signatory to the European Convention of Human Rights and this preceded a permanent court. The Court was in fact only made permanent in 1998. Conventions are seen by many to pool sovereignty, but this isn’t so. Conventions are mutual agreements between sovereign states and that must require those states remain sovereign.
Moreover, democratic states must remain meaningful democracies. Opinion polls have placed concerns over illegal migration consistently high in the order of priorities of voters. Political parties have campaigned repeatedly on tackling illegal migration. Where that sovereignty of democracy is challenged the answer must be there must be no challenge.
The Court itself had paid lip service to the principle of subsidiarity, that is, Britain and not Europe, must be the upholder of the convention. That has to be codified in our law, so after careful consideration of Court verdicts, the British government alone must be in charge of our external relations.
It is important to remember where this all started. After the Second World War it has seen as essential that European countries protect their citizen’s rights and our nations agreed minimum standards for these. Protection of the citizen from the state is the exegesis for international conventions on human rights.
The Convention and Court are not carved in stone. Both have been reformed many times and it is pitiful that no one in Britain is calling for a new convention to reform the institutions in an era of mass irregular migration.
Almost all criticism of the ECHR (plural) stems from a certain line in the sand…the boundary of one country to another….the border.
As a conservative, a conservative approach is to be cautious and guarded about we have change a very important part of our law. Casually tossing out or ignoring a legal institution is not conservative, it is radical and destabilising.
Questions must be asked.
The first questions we must ask is why do we even need a permanent international Court to interpret the Convention? The Hague Convention and Geneva Convention have no court. The Court does not even have judges in the sense that we do. Our common law is there to judge fairly based on the values of our people, many European judges are not even judges in their own lands. We never used to have a permanent Court, could we return to a commission on matters affecting the borders of member states?
The next question is that who decides what is right and wrong? In a democracy the people must decide and this means British people decide what is right in Britain.
Foreigners for the most part do not have the vote, and those who do inherited it as a colonial right from a legacy the Left otherwise abhors. Until 1981 there wasn’t even a definition of a British citizen because within Empire there never needed to be. Mass aviation changed that bringing thousands into Britain who had no history of living here so citizenship was needed. Mass illegal migration must force a similar change in the state citizen relationship.
Therefore should anyone other than the British even have the vote in Britain? If so, this should be matters within the UK, not beyond it.
The final question follows from this. If the ECHR is there to protect citizen from the state should it apply to foreign citizens?
This is a difficult question. There is a strong argument that anyone here subject to our laws must also enjoy our rights. That is, provided they have a right to be here. There are many examples where foreigners may legally be here but not enjoy equal rights to our citizens. Benefits, working rights, subsidized university tuition and healthcare count among them. This has become a needlessly messy area because there is no real distinction in the ECHR between citizens and non citizens within the UK.
There must be parity of esteem between citizen and state at the very least, not between citizen and non-citizen. Put simply, our people must be special. That is democracy. When citizenship gives no greater right over the state that its absence that is tyranny because it bypasses the fundamental principle of democracy… Home Rule.
These questions do not require leaving the ECHR but leading it, yet no one has seriously suggested primacy of the citizen in the argument of subsidiarity.
Let’s spell it out for those in power and those seeking it. The rights protected by the Convention must apply to our citizens and also to foreigners living here so long as the government elected by its citizens decides they can be here. British citizens and British Overseas citizens must be presented against the rest of world.
Should foreigners have direct redress to the ECHR while they live in the UK? I think yes.
Should foreigners be allowed to decide our government? I think not.
Should foreigners have to right to bypass our democracy when our government wishes to remove them? No!
As certain as it is the right to lawfully dismiss an employee or end a tenancy the government must enjoy the certain right to remove a foreign person from this country.
The Court can uphold the rights of our citizens and our guests but not usurp our right to determine who is a guest and who is not. That is, it can act within the border of the United Kingdom but not beyond it. The Realm that grants the ECHR jurisdiction within the United Kingdom must not prevent it acting AS the United Kingdom for its people as regards the rest of the world.
Reform of the ECHR can be done within UK law by amending the Human Rights Act and all other laws relating to the ECHR through a Sovereign Derogation. We will apply the ECHR to people within the UK and we will decide who is to stay within the UK. Our external relations, codified and democratic, can lie outside the ECHR.
We cannot meaningfully enjoy the European right to Freedom of Association if we cannot remove from our country those we do not wish to associate with.
We cannot have subsidiarity if we cannot define the UK as being sovereign over its external relations including citizens of those external relations for whom we have means of allowing them to stay legally.
The invisible hand of the realm must be made visible. If we don’t want someone to stay, then they are going. For as long as they stay, they enjoy the same freedoms from the state as the rest of us.
We must restore our border. Let that border be our people’s democracy, within Britain and beyond.
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