Non-refoulement: the ‘moral line’ which any meaningful ECHR reform will have to cross

This morning, we find ourselves in the highly unusual position of having to credit Lord Hermer for something, even if it is only honestly. The Attorney General, the Times reports, has dismissed the idea of Shabana Mahmood somehow reforming the European Convention on Human Rights.

His case (again, usually) is perfectly reasonable: the last time the ECHR was amended, the whole process took nine years. Therefore any attempt to deliver reform in the short-to-medium term, which is probably the only time horizon this government need concern itself with, would amount to little more than a “political trick”.

The whole thing is a little bleak. Hermer’s comments are apparently being interpreted as evidence that the Government is “giving up on hope of achieving meaningful changes”; but given that Mahmood hasn’t had even one meeting with the Council of Europe since first making the case for reform back in June, there is little evidence that it had much hope to begin with.

In contrast with the current Attorney General, a few days ago we had in the same paper a piece from Lord Falconer, Tony Blair’s former Lord Chancellor. It too was extremely clarifying, albeit in a different way.

On the surface, Falconer’s piece employed the evasive framing normally employed by the defenders of an untenable status quo. For example, the strapline summarises the argument as “the public want action” (although what action he thinks they want is left unsaid) “but also fairness”, ‘fairness’ in this case meaning the unmodified operation of the ECHR. Then there’s this gem:

“Let’s be clear: the ECHR is not an obstacle to effective immigration control.”

This is an excellent example of a very common trick employed by lawyers who engage in politics. It is very much written to be taken as a statement of fact, from a lawyer; but read on, and one swiftly discovers (for it is a very short piece) that Falconer’s definition of “effective immigration control” does not include any changes at all to the current rules governing refugees:

“Scapegoating the ECHR distracts from real solutions. Since 2018 about 68 per cent of small boat arrivals have been granted asylum – people fleeing war, torture and persecution. Sending them back into harm’s way is a moral line we cannot cross.”

Here, at least, we must give Falconer a little credit: he has accurately and plainly identified the actual crux of the question – the principle of non-refoulement. Beyond futile debates about tweaks and adjustments, which are essentially just procrastination, the debate about border control boils down to whether or not one is prepared to cross that ‘moral line’.

That can be a tricky thing to argue, at first glance. After all, non-refoulement “guarantees that a person cannot be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm.” That sounds nice, and the alternative very not nice.

But many of the things driving public anger about the immigration system owe to this principle. When a court refuses to deport an Afghan sex offender because his “risky behaviours” might expose him to danger in his home country, for example, that’s this principle in action. So too is our inability to simply refuse asylum to people who come here illegally; because non-refoulement applies regardless of immigration status, anyone who gets here from a potentially dangerous country becomes, indefinitely, our problem.

The attitude which underpins this legal order is, at root, profoundly solipsistic. The priority is allowing politicians and lawyers to make individual decisions about the case in front of them which don’t actively implicate themselves, personally, in anything they might find unpleasant. The broader consequences for the system, and of it, aren’t the point.

But public consent for the system is buckling under precisely those consequences, and the pressure is only going to get worse. For if Falconer’s statement is taken at face value – and it is a clear expression of the system’s underlying logic, so why not – it means that tens of millions of people around the world, if not more, are legally entitled to an alternate life in the United Kingdom, with taxpayer support, and the only thing controlling that inflow is whether or not they can physically get here.

Such a system creates perverse incentives on both sides, but particularly for the government. It is not only a ‘pull factor’ which induces people to risk their lives crossing the Channel, but it is also why the state makes them, and why successive governments have ignored people who call for ‘safe and legal routes’ as a way of stopping the boats.

Those calls obviously, and usually willfully, confuse a symptom with the underlying problem, of course; the easiest way to ‘stop the boats’ would be to stop searching the lorries. But the deeper problem is that there is currently no practical mechanism for capping the number of asylum claims a country accepts except putting the place where claims can be filed on the wrong side of an imposing moat. Allowing applications in France, or in an asylum-seeker’s country of origin, make perfect sense as methods for combating the evils of people-smuggling; but no government will do it, because it would remove the main practical barrier shielding Britain from an unlimited humanitarian liability the public does not support.

Judges’ increasingly expansive approach to non-refoulement is also one of the critical drivers of the metastasization of the ECHR. As originally conceived, signatory states’ obligations under it governed their own conduct. But following a series of judgments, this was expanded into second-order responsibility for what happened to people if they were deported; that’s why the British taxpayer is obliged to look after people if foreign gangs might threaten their relationship.

The net result is an immigration system which not only exposes Britain to an unlimited and fundamentally uncontrollable liability to take people in, but also ends up more-or-less negatively selective. If we can’t deport people because they would not receive medical treatment the British taxpayer would otherwise give them, or their home country’s system of criminal punishment falls short of our standards, we make healthy, law-abiding net contributors the easiest category of people to deport. Which is insane, when you say it.

All this is just one manifestation of our modern approach towards welfare commitments, which is to create abstract schemes of legal entitlement and then simply hope for the best. The consequences might add up to runaway welfare spending and uncontrollable borders, but again that isn’t really the point; the point is that the people overseeing the system are not personally implicated in the decision to deprive somebody of money, or healthcare, or sanctuary, or whatever.

Falconer is entirely correct that in identifying this ‘moral line’ as the crux of the question, on asylum and much else. I suspect he’s wrong, however, to claim that the British people are actually – and will remain indefinitely – content for their country to be a global dispensary attached to a national tax base.