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Theresa May Must Commit To The ECHR

06/04/2017 16:41
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Last week, the Government published its White Paper for the Great Repeal Bill - the document which sets out how the Government will ensure a functioning statute book after the UK leaves the EU. The White Paper has already taken up a great deal of column inches. However, its references to human rights have attracted less scrutiny than other areas. Despite the lack of attention, the White Paper is important for human rights legislation in the UK. In particular, It demonstrates the need for the UK to remain a signatory of the European Convention of Human Rights (ECHR) after Brexit.

The White Paper explains that the Government will withdraw from the European Union's Charter of Fundamental Rights - the document which sets out human rights as they are recognised in EU law - because many of the rights in the Charter are already contained in other international instruments which the UK enforces. Withdrawing from the Charter would therefore not substantially affect the rights enjoyed by Britons because they exist elsewhere.

This is clearly correct. The Charter of Fundamental Rights - which entered into full legal force with the Treaty of Lisbon in 2009 - did not create any new rights. Instead, the Charter was intended to make rights that already existed under EU law more accessible by drawing them together in a single document.

However, the argument that withdrawing from the Charter would not affect rights is predicated on Britain's continuing membership of the ECHR. As the White Paper says itself, it is "notably the ECHR" where many of these rights already exist. Therefore, it follows, that if the UK withdrew from the ECHR then many of these rights would be lost.

The White Paper states that there are "no plans" to withdraw from the ECHR. However, there have been reports in the media which suggest that the Prime Minister, Theresa May, may include withdrawal in the next Conservative Party manifesto.

The PM is known to be sceptical of the ECHR which delayed the extradition of the hate preacher Abu Hamza during her time as Home Secretary. She called for withdrawal from the ECHR in the run-up to the Brexit referendum, but later stated, during her successful Conservative Party leadership bid, that she would not pursue withdrawal because she believed that Parliament would not support it.

However, the PM's scepticism is misplaced. The ECHR is originally derived from English common law and conservatives should feel very comfortable with its contents. It was drafted after the Second World War to protect individuals from an overreaching state and undue power. This was both to prevent the atrocities that had just occurred across Europe, but also to limit the rise of socialism in Eastern Europe.

David Maxwell-Fyfe - who later became a Conservative Home Secretary - was instrumental in the drafting of the ECHR. While, in Parliament, Winston Churchill was one of the Convention's keenest advocates. As Jesse Norman and Peter Oborne point out in their book Churchill's Legacy, it was Clement Attlee's Labour Government which was most suspicious of this new Convention.

The conservative ancestry of the ECHR is visible throughout the document. The ECHR protects individuals from an over-powerful state through both qualified and unqualified rights. These include freedom from torture and servitude, as well as the right to a fair trial, to free expression and to privacy. The ECHR, and the Human Rights Act which enshrines it, is routinely used by newspapers during freedom of expression cases.

Of course, there are some uncomfortable examples. Most would have preferred Abu Hamza to have been deported more expediently than was the case. But human rights legislation is always forced to balance competing rights. This can lead to unpopular decisions but such decisions are symptomatic of a healthy and independent judiciary.

This is why, two weeks ago, Bright Blue launched a petition which urges the Prime Minister to commit Britain to remaining a signatory of the ECHR after Brexit. This is one of over 60 policies that Bright Blue will be recommending at the forthcoming launch of the final report from our year-long human rights inquiry. The petition is supported by our Conservatism and human rights commission, which includes three former Cabinet Ministers.

James Dobson is a researcher at Bright Blue

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