Brexit is not enough – we have to take back control over the rule of law

The PM knows that the ECHR makes her central promise of proper control of our borders a fiction

Mrs May said yet again yesterday that Britain, post-brexit, must regain control of our money, our laws and our borders. She is right.

But if we ask ourselves why we do not have control of our laws and borders, our membership of the European Union is only part of the answer. The other big bit is the European Court of Human Rights (ECHR) in Strasbourg.

The ECHR was founded before the EU and is not an EU institution. It was invented shortly after the Second World War to help prevent the return of Nazi tyranny. Over time, however, its purpose has been diverted. Nowadays, it is effectively the sister of the EU in the long-running international project to weaken the right of nations to have their own laws made by their elected representatives.

One example is the ECHR’S famous ruling that Britain must allow prisoners to have the vote. Another is the way the court has crept beyond the borders of its member states to tell us what we must do anywhere in the world. When we were fighting in Iraq and Afghanistan, our ability to act in life-and-death situations was constantly compromised by Strasbourg legal interference and the prospect of being sued to the crack of doom. These difficulties now inhibit all our military operations.

Because she was formerly home secretary, Mrs May well knows that human rights law as developed by the ECHR makes her central promise of proper control of our borders a fiction.

In the case of Hirsi Jamaa v. Italy (2012), for instance, it decided that if the Italian authorities turned back boats of migrants to Libya, they would be violating Article 3 of the European Declaration of Human Rights, because this would be “inhuman and degrading treatment”. No exceptions could be made. Every people trafficker thereby received, in effect, a blank cheque for however much human cargo he could cram into a boat making for Europe.

In Chahal v UK (1996), the court held (again under Article 3) that if Britain sent back a migrant to his original country where he might then be tortured, we would be liable for that torture.

The fact that the person concerned might be a dangerous terrorist made no difference to the court, nor did the consequent trouble and expense of keeping such a person in Belmarsh or wherever.

Indeed, the court held that it was quite wrong to consider the welfare of the host country: “Even in the event of a public emergency threatening the life of the nation.”

Public confidence in immigration depends upon the right of our elected government to decide who can come and who must go. Like the EU, the ECHR explicitly, even proudly, denies this right.

For some time now, such decisions, and the Strasbourg court’s supreme power to impose them, have given “human rights” a bad name. A popular view has developed that such rights are special privileges for undeserving people, imposed by unanswerable judges who do not necessarily have the best interests of British citizens at heart.

The dislike of such judgments is related to the feelings which led 17.4 million British people to vote Leave in the EU referendum – a desire to assert independence.

It is also a resentment that this country – which thought of parliamentary government, trial by jury, habeas corpus and all the rest of it many centuries ago – is literally being put in the dock by those whose affection for liberty and the rule of law is more recent and fickle. Our common law is the product of experience, not doctrine, and is therefore sounder than European human rights.

In Tony Blair’s “Behold, I make all things new” era, which did so much to separate elites from people, such thoughts became hard to express in polite society. It was a mark of being a thoroughly modern millennial to regard British institutions as dusty and defective. But Brexit is changing that. In intellectual and policy circles, such matters are no longer “niche”: they are coming to be seen as central to our future.

The leader in the field is the Judicial Power Project of Policy Exchange (the think tank of which I was chairman before this excellent innovation was born or thought of). The aim is to re-examine the powers and role of judges: have they over-reached, and has democracy suffered as a result?

The subject attracts the best minds. On Thursday night, Sir Noel Malcolm, senior research fellow at All Souls, Oxford, and once upon a time political columnist of this paper, expounded his brilliant new book Human Rights and Political Wrongs in discussion with our foremost moral philosopher, Onora O’neill; our greatest legal theorist, Professor John Finnis; and the ex-president of the Supreme Court, Lord Phillips.

Sir Noel worries that the ECHR constantly inflates what rights mean. For example, Article 8 which protects “home and family” life, has now been stretched to define “home” as including what happens at business premises (and temporary dwellings erected by gypsies on land without planning permission). In acting this way, the court becomes political and strays into the realm much better looked after by Parliament. Sir Noel thinks that human rights should simply concern themselves with maintaining the limits of state power. Such rights can be found in our existing law without any help from Strasbourg. He has come to the conclusion that Britain should leave the ECHR.

Lord Phillips supports British membership of the court, although he, too, is irritated by the occasions when it oversteps its remit. In his view, it was created to uphold “the rights you need to make life worth living” and so its function is a form of “policing”. But when I asked him if such a policeman could achieve anything in this country that we cannot do for ourselves with our own Parliament and our own judges, he said he thought not. He wanted Britain to stay in the court only to prevent it collapsing.

This view discloses an admirable motive, but is surely mistaken. The ECHR is, under present arrangements, effectively supreme. So our own Supreme Court is incorrectly named. If complainants don’t like what it says, they apply to Strasbourg, and quite often win. I should have thought this was an uncomfortable thing for our own judges, who are much more learned than most of the ECHR judges drawn from all 47 member states. I am certain it is a bad thing for our citizens’ relationship with the rule of law and the rule of Parliament. When you bring both those types of rule home, each vindicates the other.

The last Conservative manifesto declared that it would not legislate to take Britain out of the ECHR in this Parliament. Its reasonable excuse was that the Government would have its hands full accomplishing Brexit. But it is important to understand that the ECHR and the EU’S own European Court of Justice reinforce one another in denying legal autonomy to member states. Therefore the Withdrawal Bill rightly removes Britain’s adherence to the EU’S Charter of Fundamental Rights, which is really the ECHR’S rights with an almost unbelievable number of knobs on.

Lord Denning once famously compared European law to “an incoming tide”. He was right, but no tide comes in for ever. In the Middle Ages, we reclaimed lots of land from the sea by “inning” it – embanking the sea marsh and putting one-way drains in the new sea-wall. It became fertile soil. We must do the same with our laws.