Jonathan Thomas: Badenoch’s Lawfare Commission may yet prove a winning strategy on the ECHR

Jonathan Thomas is a migration researcher and senior fellow at the Social Market Foundation.

Conservative voices have for some time been querying whether the UK can continue to be part of the European Convention of Human Rights as it stands – particularly as regards Article 3 (the protection against inhuman or degrading treatment) and Article 8 (the protection of the right to respect for private and family life) – and still maintain its democratic sovereignty.

Now, all of sudden, everyone else seems to have discovered the same concerns, and piled in.

Some other European governments clearly have the same concerns as the UK around the way that foreign national offenders are using the ECHR’s protection to thwart states’ efforts to remove them. The Labour government has said that, while it is committed to remaining in the ECHR, it wants it amended to address these concerns. Even the Liberal Democrats now seem open to reform. And Nigel Farage has made it clear that, were he to gain power, the UK leaving the ECHR will be his number one priority.

Amidst all this, Kemi Badenoch’s launch of her ‘Lawfare Commission’ review – to include legal analysis of what the Conservatives’ own position should be on the ECHR issue – is in danger of being drowned out. Not so long ago a Conservative leader’s speech on, and commissioning a review of, the impact of international law on the nation’s democracy, security and prosperity, and the challenge of managing the interface of international law and national sovereignty, would have been the top story.

Now, her speech didn’t even make it into the day’s major news stories on the BBC website. Nobody seems to be listening.

Perhaps because it raised more questions than it provided answers. And because in some respects it presented a confusing narrative. The law was too strong, she said, but also too weak. Too prescriptive, but also too unclear. In quick succession she asserted that “the law is an ass”, “the rule of law is precious for Conservatives”, and “Britain has the best legal system in the world”. She admitted that she had previously been in favour of reforming the ECHR, but now thought the UK would likely need to leave the ECHR to secure its best interests. But first she wants a full legal review, headed, confusingly, by a legal expert who seems not to agree with her, but instead who favours reform of the ECHR rather than leaving.

But the fact that nobody seems to be listening may be to the advantage of the review process that Badenoch has set in motion. And her ‘everything, everywhere, all at once’ approach to framing her questions, and their scope, could prove a real fly in the ointment for both Labour and Reform, and muscle in on the straight battle they wish to have over the ECHR.

Her review certainly lays down the gauntlet to both Labour and Reform, in terms of:

• Scope – what is being impacted: Her review is expansively drawn in terms of international law’s impact. For her it is not only about migration control. It is also about army veterans held to legal account for military actions. Additionally, it will investigate barriers in the way of prioritising British citizens’ access to social housing and public services, and in the way of infrastructure projects being built.

• Scope – what is having the impact: Her review is also expansively drawn in terms of what international law may be adversely impacting the UK. It is not only the ECHR – other international treaties also impinge on the UK government’s freedom to act as voters want. And, for her, these must therefore be reviewed as well, because it would be unforgivable for the UK to leave the ECHR in order to increase its freedom to act on a certain issue only to then find itself still constrained by the impact of other international treaties it is subject to.

• Consequences and plan: These are complex issues requiring “a thorough review and a clear plan”. This means an understanding, before the UK leaves any international treaty, of any unintended consequences of doing so, and “what issues will still remain unresolved even if we leave. We must look before we leap. We must be sure of our footing and sure of where we will land.” So, a careful legal review is required first, then the political decision comes after that.

Perhaps it is because politically the Conservatives now have so little to lose that Badenoch can ask important questions about what the protections, impacts and trade-offs inherent in different international law obligations mean for the UK’s democratic sovereignty and national policies – and what should be done about it – without pre-judging all the conclusions that will be reached.

In doing so Badenoch shouldn’t expect many plaudits, even from her own side. Neither those Conservatives who want to stay in the ECHR, nor those who want to leave it, seem happy with her approach. But wherever it lands, her review’s scope, framing, and timing – she said that “at Conservative Party Conference we will report back on our conclusions” – has the potential to make life uncomfortable for both Labour and Reform in respect of their own narrower focus on the ECHR issue.