Leaving the ECHR must be accompanied by major changes to domestic equalities legislation
The European Convention on Human Rights (ECHR) came into force 70 years ago at an extraordinary point in history. Europe was reeling after a conflict that engulfed the whole continent, leaving millions of people dead and displaced, and countless others scarred by the unimaginable human rights abuses perpetrated by the Nazis.
The aim was to legally enshrine fundamental rights such as free speech and freedoms of association and religion, thus protecting individual citizens from the excesses of state power that Hitler had used to such devastating effect.
Unlike many treaties, the ECHR is not a fixed contract but a “living convention” and, over the years, an active interpretation by the courts has expanded and distorted the Convention beyond recognition. This “mission creep” is such that the ECHR has now become a threat to – rather than a protector of – democracy.
Such concerns are illustrated by the “pyjama injunction” last year, where an unnamed Strasbourg judge overruled the elected UK Government in the middle of the night, effectively grounding a flight that was ready to transport illegal migrants to Rwanda. Defending national borders is surely the primary duty of any government and it is frankly absurd that an unelected foreign judge can prevent a democratic executive from achieving its legitimate aims.
The ECHR was created to protect citizens from their own government, but it is now at risk of preventing governments from protecting their own citizens.
Uncontrolled mass migration is possibly the most serious security threat of our time, and the ramifications of failing to tackle it will be severe. If the Supreme Court later this year decides that the Government’s Rwanda policy is incompatible with European law, there will be a very compelling case for leaving the ECHR.
It is disingenuous to claim that this would be a backwards step for human rights in the UK – our common law inheritance gives this country one of the best human rights records in the world, a heritage that predates the ECHR by many centuries.
But while there are sound political arguments for leaving the ECHR, and the migration issue is of such significance that ultimately there may be no choice, we must be clear about the unintended consequences of such a move. The unfortunate truth is that, in the last 50 years, aspects of UK equalities legislation have progressively mushroomed to become a threat to freedoms of speech, expression, religion and association; a threat that is currently only held at bay by our membership of the ECHR.
Human rights legislation and equalities legislation essentially pull in different directions. Human rights laws protect the individual against the state, but equality laws have evolved into an organ of state intervention, such as the Public Sector Equality Duty (PSED), which compels organisations to actively promote a selective notion of “equality” and has had a chilling effect on free speech.
It is the culture created by equalities legislation that allowed NatWest to “debank” Nigel Farage, schools to “socially transition” children, and a first instance employment tribunal to consider Maya Forstater’s factually accurate views on biological sex – shared by much of the population – somehow not worthy of respect.
At present, our current human rights arrangement may be in some cases the only effective shield against such state overreach.
If the UK were to leave the ECHR without reforming equalities legislation, we could regain the sovereignty required to tackle illegal immigration. But there may also be far-reaching repercussions for freedoms of speech, association and religion, the very rights that post-war leaders sought to enshrine. This is not an argument for remaining within the restrictive ECHR, rather a plea for a substantial overhaul of UK’s equalities legislation, for example by considering the future of the PSED and reviewing the Gender Recognition Act 2004.
The Government should prepare to withdraw from the ECHR, but it must do so alongside a plan to curb the excesses of domestic equalities legislation to ensure the protection of fundamental freedoms in UK law. Only then can Britain claim to be a self-governing sovereign nation of free citizens.
First published in the Telegraph | April 2023
