The elephants in the room

From the ECHR to monetary policy, democratic government means political choices - not just technocracy

Towering Columns

For ConservativeHome, Henry Hill says the Court of Appeal ruling is not fatal for the Rwanda policy, but the European Convention on Human Rights remains the problem:

This defeat once again hinged on technical questions vis-à-vis Rwanda’s capacity to apply the safeguards necessary for the scheme to be lawful. It has not ruled that the policy is inherently unlawful, or incompatible with the Refugee Convention, or any of the other arguments adduced by those seeking to get the whole thing thrown out. That suggests that whilst it may take an arduous process of lawfare, the Government ought to be able to get the Rwanda policy over the line, if it has time and energy enough. Whether it will be able to get it operational in time to reap any electoral dividend for it next year is another matter.

Where does this leave the Conservatives’ internal debate about the European Convention on Human Rights? So far, it looks as if the rebels who tried to amend the Illegal Migration Bill broadly accept … that ministers need to focus on getting the necessary refinements and additional guarantees in place to get the policy over line under our current arrangements. There has been relatively little arguing that the decision means we have to withdraw.

Over the longer view, what this case illustrates is how membership of the ECHR limits any government’s practical freedom of manoeuvre. Parliament is sovereign, and can indeed legislate to any effect it wishes. But historically governments have proven extremely unwilling to simply accept a declaration of incompatibility (even prisoner votes saw an eventual compromise). Without that the Convention (which is not just a text but an ever-expanding body of Strasbourg law) will continue to channel policy down certain channels of least resistance, and throw up huge (if not technically insurmountable) obstacles to any policy which seeks to strike out in a different direction. Especially in cases such as this, where the scheme is being taken forward using secondary legislation and immigration rules, and thus the courts can simply strike it down.

In the Daily Telegraph, David Frost says the Government must do what it takes to stop the boats - including taking on the European Court of Human Rights:

The problem is that the Government pulled its punches with the Bill. It doesn’t want to breach or leave the European Convention on Human Rights (ECHR). So the Bill doesn’t do that. But as a result it doesn’t have all the powers it needs. If the Supreme Court doubles down, the government will have three choices.

First, reformulate the policy, for example sending arrivals to an Overseas Territory instead. Second, bring forward a new Bill which explicitly requires illegal arrivals to be sent to Rwanda, notwithstanding any other international or domestic law commitments or legal proceedings. This is probably what Suella Braverman would have preferred in the first place. But it is a potential breach, at the very least, of the ECHR. Third, leave the ECHR.

The first is difficult in practice. There may well be no Commons majority for the second or the third. This situation is all too reminiscent of that facing Boris Johnson in autumn 2019. The Supreme Court under Lady Hale and parliamentary Remainers blocked his central policy, Brexit. The only way through was an election. He won it because he’d shown, in the months before, he was willing to do whatever it took to deliver – and voters backed him.

Rishi Sunak might yet get luckier with the Supreme Court. If he doesn’t, he will have to face up to the looming prospect of a confrontation with government lawyers, the Lords, and maybe with Strasbourg – but with voters on his side. He should start preparing for it. Get it right, as in 2019, and it might swing voters back behind the Conservatives as the only party doing what needs to be done. Fail, and it will surely definitively destroy the Government’s credibility.

For UnHerd, Tom McTague says monetary policy is political, and the politics of inflation mean we are in for a bumpy ride:

The truth is we have far less control than we like to admit. To think that we have solved the inflationary conundrum by outsourcing it to the Bank of England is as hubristic as all the other assumptions we made about the end of history in the Nineties. Britain’s central bankers can’t solve the inflation problem in isolation. It has one set of tools — interest rates — and these are blunt instruments at best. In both the Seventies and Eighties, it quickly became clear that monetary policy alone was not enough to deal with inflation; fiscal tightening was also necessary. And even then, sudden shocks in the global economy completely changed the domestic picture, whether the oil price rise of 1973 or oil price crash of 1986.

The other lesson from history is that the battle to control inflation is, by its nature, political not technocratic. Whichever method you choose to keep it under control, the burden necessarily falls on one group in society over another. In the Seventies, unionised workers protected themselves with good pay rises, while those living on fixed incomes, like the elderly, were badly hurt. Over the past 15 years it has been the opposite. Today, meanwhile, it looks like the burden will fall on those with mortgages — a group that has largely avoided the pain until now.

While inflation seemed under control in the Nineties and early 2000s, few paid much attention to the distributional consequences of the system, but today the whole structure is back under scrutiny. And so it should be. Not only is the Bank’s competence fair game, so too is the system itself, resting as heavily as it does on interest rate rises over other tools.

After a BBC investigation identified a sixth suspect in the murder of Stephen Lawrence, Melanie Phillips says the failed police response was down to incompetence and corruption, not institutional racism:

The 1999 Macpherson report of the inquiry into the botched Lawrence murder investigation obscured this central point. Macpherson blamed the Met’s failure instead on “institutional racism”. Yet there was no evidence at all of any racist act by the officers involved. There was instead ample evidence of institutional incompetence, with a suggestion, also never followed up, of corruption.

But from the start Macpherson’s interrogators were determined to find the police guilty of racism. In a precursor to today’s bullying climate in which people are forced to admit their “white privilege”, the inquiry pressed the police to confess to their own racism. One of Macpherson’s advisers, Dr Richard Stone, urged the then Met commissioner, Sir Paul Condon: “I say to you now, just say, ‘Yes, I acknowledge institutional racism in the police’ . . . Could you do that today?”

… [the police] didn’t just internalise their apparent original sin of racism, graphically demonstrated by the number of officers who “took the knee” to the anti-white, anti-West, anti-police dogma of Black Lives Matter. They also went round feeling people’s collars for “non-crime hate incidents”, or supposed offences against identity politics, while at the same time failing to deal with burglaries and other actual crimes. This demoralisation — in every sense of the word — almost certainly played a significant part in the Met’s many professional lapses that followed. Yet the real story from the evidence presented to Macpherson, now so startlingly confirmed by the BBC’s investigation, was that the Met was not racist but instead incompetent or corrupt, or both.

In the Financial Times, Gideon Rachman says after the aborted Wagner coup, things will never be the same again for Russia and Vladimir Putin:

The Wagner forces were the most effective fighters that Russia has deployed in Ukraine. But the militia, which has tens of thousands of members, is now to be disbanded and its leader sent into exile. In theory, any Wagnerites who took part in the weekend rebellion will not be allowed to serve in the Russian armed forces. But expecting a battle-hardened, rebellious militia to simply dissolve into Russian society sounds unrealistic. Incorporating the former Wagnerites into the Russian army also sounds like a hazardous operation.

Russian forces in Ukraine will also wonder how long domestic support for the war effort will hold up. Prigozhin’s rebellion and his caustic takedown of the reasons for the war will be heard on the battlefield, and will surely affect morale. As John Kerry (later to become US secretary of state) put it when the Vietnam war was winding down: “How do you ask a man to be the last man to die for a mistake?” As for the Ukrainians, they know that open disarray in Russian ranks presents them with an opportunity. They may choose this moment to commit reserve troops to the counter-offensive. They will also be furnished with new arguments to present to their friends in the west, at the Nato summit next month.

For all that, it would be a mistake to believe that anything is inevitable — including Putin’s downfall. His friend Recep Tayyip Erdoğan got through a coup attempt in Turkey in 2016 and is still clinging on to power. But the odds on Putin’s survival are clearly getting worse. Prigozhin remains a threat. He is a genuine thug — a former convict, who is comfortable on the front lines. The contrast with Putin, a former bureaucrat who is fond of posing bare-chested, but terrified of infection, is getting a little pointed.

In the Wall Street Journal, Barton Swaim says the American Left sees extremism where none exists:

Mr. Biden is worried about book bans. The American Library Association recently claimed in a report that 2,571 books were “challenged” in American libraries last year. These challenges the ALA calls “attempted book bans,” nearly all of which involve a request by a patron that a public library or school library remove a book from its shelves because it is obscene or otherwise offensive. I’m not sure such requests are improper—young-adult fiction has become sexually avant-garde and shockingly coarse over the past two decades. Anyway, to ask that a taxpayer-supported library not facilitate children’s access to a sexually explicit book isn’t to “ban” it. An interested patron may buy it and read it in public if he wishes…

The president also noted, as a justification for his re-election, “MAGA extremists” wishing to tell people “who they can love.” That’s a reference to same-sex marriage, which the Supreme Court legalized nationwide in Obergefell v. Hodges (2015), and which faces virtually no political resistance. One assumes Mr. Biden was alluding to Justice Clarence Thomas’s suggestion, in a lone opinion last year, that the court should “reconsider” its reasoning in Obergefell, which was rooted in a doctrine called substantive due process. The idea that one statement by one justice about an abstruse legal subject signifies a mass political movement aimed at rolling back same-sex marriage is a species of madness. A certain variety of conservative may wish there were such a movement. But there isn’t one. Mr. Biden is seeing things.

What about those MAGA extremists “making it more difficult for you to be able to vote”? The nonexistence of observable voter suppression has been demonstrated many times, in this newspaper and elsewhere, but two recent data points are worth remembering. In January 2022 Joe Biden characterized a Georgia election-reform bill as “Jim Crow 2.0” and likened its supporters to George Wallace, Bull Connor and Jefferson Davis. The law passed, and in the midterm elections later that year more black voters cast ballots than before the law. A subsequent University of Georgia survey found that 0% of black voters reported a poor voting experience in 2022, whereas 72% of black voters said it was “excellent,” the same as white voters. Yet the president names voter suppression as a reason for his candidacy in 2024.

Wonky thinking

For the King’s Fund, Siva Anandaciva says there is little evidence that a particular model of health care funding produces better results than another, and countries should aim to improve their existing models: 

The UK health system is neither a leader nor a laggard. As one of our interviewees noted, the UK spends a roughly average amount on its health system and largely achieves what you might expect – broadly average outcomes (including both health care outcomes and how well the system protects people against the financial costs of poor health). But the UK still possesses some distinctive strengths and weaknesses compared to its peers. Although health spending overall is roughly average at best, capital investment lags behind many other advanced economies, so it is no surprise that the UK compares poorly in its level of key equipment and facilities such as diagnostic technology and hospital beds.

The UK health care workforce is also an outlier on many measures. We have a high reliance on foreign-trained staff but strikingly fewer doctors and nurses per head than most of our peer countries. The UK health system fares better in protecting its population from the financial consequences of ill health or injury. And the UK performs well on some measures of efficiency, including generic prescribing rates and spending on administration. But while we are middle of the pack on several of the factors that contribute to our health – such as levels of smoking and drinking – we perform poorly on measures of life expectancy and avoidable mortality.

Ultimately, it should be a serious concern for political leaders and policy-makers that the UK health system continues to fall behind so many of its peers on health care outcomes – on health care outcomes specifically, our health care system is unfortunately more of a laggard than a leader. The UK performs worse than many of its peers on several comprehensive measures, including life expectancy and deaths that could have been avoided through timely and effective health care and public health and preventive services. And survival rates from major killers such as cardiovascular disease and cancer remain relatively poor. Improving on these measures requires action, both within the remit of the health system itself and on the wider social determinants of health, such as education, housing and employment.

In a blog post for the Bank of England, Danny Walker says interest rate rises will affect house prices most where there are constraints on supply:

This post suggests that constraints on housing supply increase the price impact of a given change in housing demand. So the recent rapid rise in interest rates could put more downwards pressure on house prices in areas of the country with more supply constraints. There is already tentative evidence that prices in London are weaker than elsewhere. For the Bank of England, this means a key part of the monetary policy transmission mechanism varies across the country and might also vary over time as supply constraints evolve. And as mortgages are the largest loan exposure of banks, the evolution of house prices matters for financial stability and prudential regulation too. For other policymakers, this evidence points to the importance of housing supply in influencing the level and volatility of house prices.

For the Resolution Foundation, Molly Broome, Adam Corlett and Greg Thwaites say we will continue to face a high tax burden, and that is all the more reason for tax reform:

Tax policy making does need to include an element of political pragmatism, but the UK cannot afford to merely opt for the easiest policy choices every time. A long-term strategy is needed, one that provides a degree of certainty for businesses and individuals by setting out broad principles and directions for reform. Such an approach will also help policy makers wrestle with the inevitable trade-offs that tax policy throws up, and guide decisions at each fiscal event despite ever-changing circumstances. And this strategy cannot be derived solely from an economics textbook, or simply seek to achieve some idealised goal like simplicity: the tax system has to contribute to and be a full part of our overall economic strategy, recognising that the UK desperately needs a period of strong, shared growth.

A number of principles can help achieve these goals. Taxes should fall first on externalities such as pollution and congestion, and favour the taxation of land or housing that is in relatively fixed supply. With UK investment levels consistently among the lowest in the G7, we should reduce barriers to corporate investment (including by reducing uncertainty), and we should lower transaction taxes to boost dynamism and the ability of workers to move to better jobs. After 15 years of stagnant wages, we should avoid piling all tax rises on employment, including by reforming the tax system to account for recent decades’ huge rise in household wealth. And the same economic activity in different guises (such as the same work being done by an employee, a self-employed person or a business owner) should generally be taxed at the same rate, for reasons of both efficiency and fairness.

Book of the Week

Our recommended reading this week is ‘The UK and Strasbourg: A Strained Relationship - The Long View’ by Ed Bates, in The UK and European Human Rights: A Strained Relationship? Although Bates takes a very different view of the ECHR to Suella Braverman, his account of the history of Britain’s status as a signatory to the Convention is required reading:

The British contribution to the Convention's drafting is emphasised today by those who plead that the UK should not turn its back on a system it helped to establish, pointing to the input of figures such as Winston Churchill and Sir David Maxwell-Fyfe. Indeed, these individuals (especially the latter) did make a significant contribution to the Convention's genesis; however, right at the outset the real concern of the British (Labour, Atlee) government was with the potential loss of national sovereignty entailed by participation in an international system for the protection of human rights. This was one reason why, in 1950, there was a less-than-enthusiastic approach toward the Convention from the British government, which, amongst other things, opposed the establishment of a European Court of Human Rights.

… when it was opened for signature on 4 November 1950, the Convention amounted to a compromise between those who mainly saw it as an interstate pact to serve as an alarm bell for Europe to prevent a re-emergence of totalitarianism, and others who saw it as a potential European bill of rights for a ‘new’, post-war Europe. The British strongly opposed the latter, but ratified the Convention in 1951, reassured that both the right of individual petition (in fact, to the European Commission of Human Rights) and acceptance of the jurisdiction of the ECtHR were subject to optional clauses (which they did not intend to accept). Indeed, although the Convention contained articles on a Court, in the early 1950s it was not at all clear that such an institution would actually come into existence. So, concerns over sovereignty were sufficiently allayed in the course of 1950-51 for the UK to ratify the Convention, and it is fair to say, as Lord Hoffmann has, that the UK undertook that step primarily to set an example for others, and not with the expectation that it would be found in violation itself, at least not regularly. And it is also valid to suggest, as Jack Straw (then MP) did in 2012, that a reason why the States formulated the Court’s powers in the broad terms expressed under what is today Article 46(1) ECHR-that is, without a ‘democratic override’ or something similar - may have been that the States ‘never anticipated the vastly expanded role of the Court’. However, two further, general observations are now required.

First, it was understood in 1950 that the Convention established international legal obligations which could achieve ascendancy over any aspect of domestic law…Secondly, 1950 was just the beginning of the story. What was originally more of a collective pact against totalitarianism evolved into more of a European bill of rights. In 1960 the ECtHR came into being and, over the years, the States chose to accept its jurisdiction and the right of individuals to access the Strasbourg system, just as the UK did in 1966, when it was aware of the Convention’s potential to evolve. From the late 1970s onwards, the Court’s jurisprudence started to flourish…

Perhaps it was significant too that before 1998 the right of individual petition and acceptance of the jurisdiction of the ECtHR remained subject to optional clauses. Even though their non-renewal may have been a remote prospect, given the negative political reaction associated with non-renewal, the possibility of such a step may not have been without influence. The stance adopted by the UK government during the negotiation of Protocol 11 to the Convention in 1994 suggested as much. The UK strongly opposed the proposal that the right of individual petition should become mandatory, as was being proposed. The argument that it should remain subject to the individual State’s periodic decision to continue to permit this was based on the view that this feature of the Convention was vital to maintaining the balance between the authority of the Court, and that of the elected government of Member States. It was necessary as, unlike the governments of the Convention States, the Court was ‘accountable to no one’, even though it could ‘make binding decisions on domestic matters, which may oblige Parliaments to legislate'. It was submitted that this was an ‘enormous responsibility’ for the ECtHR to have, such that it was appropriate that the Member States should be able to continue to ‘review [its] performance periodically, and make a conscious decision to renew the right of individual petition’.

The UK government therefore fought to retain what it saw as a ‘democratic safe-guard’, one that it argued was ‘absolutely essential’ to avoid the Court becoming an institution that, the government contended, was insufficiently accountable to the Member States. However, the initiative was unsuccessful. It lacked support across the negotiating table, and Protocol 11 made the right of individual petition manda-tory. When it entered into force in 1998 it also established a new, permanent Court (whose jurisdiction was also mandatory)…

The line adopted [when Labour introduced the Human Rights Act] was that the Convention was highly regarded, that Strasbourg had proven itself as a trusted external auditor of human rights protection, and that it was high time that British courts should be allowed to apply ‘Convention rights’, and the Strasbourg jurisprudence, albeit under a scheme that, on its face, would not fundamentally disturb parliamentary sovereignty. Placing ‘Convention rights’ centre-stage in this way amounted to a remarkable vote of confidence in the Strasbourg system, and recognition of the constitutional-like nature of the rights protection it afforded. Incorporation would overcome the ‘inordinate delay and cost’ of having to take a case to Strasbourg to vindicate Convention rights. It would also enable an interchange of views on ‘Convention rights’ between the UK and Strasbourg judiciaries, with each gently influencing the other. But what was the real aim of the HRA? Was it narrow, to ensure that the ECHR would be complied with domestically, it making little sense for Strasbourg to keep correcting faults in UK law when British judges could do that? Or was it more ambitious, the idea being that the HRA should become a type of UK/British bill of rights? The Labour government was very ambivalent on these points when the Act was passed…

As to the broader public debate, this had been growing since 2009-10 with Strasbourg as the primary target, either directly, in the context of affairs such as prisoner voting and that concerning Abu Qatada, or indirectly, via criticism of over-reliance on Strasbourg law in the context of the judicial application of the HRA. Very importantly, however, the criticism also came from quarters hitherto regarded as favourable to the Court. This included the political ‘midwives’ to the HRA, Jack Straw (then MP) (2013) and Lord Irvine (2011). Straw led opposition to a change in the law on prisoner voting, and spoke directly in terms of Strasbourg, rather than the HRA itself, being the real problem. This chimed with the strident and direct attacks on the Court made by a small number of senior judges, speaking extra-judicially in the post-2009-10 period…

Lord Judge has spoken of a ‘democratic deficit’ arising from Strasbourg's jurisdiction vis-a-vis national authorities on matters such as prisoner voting, stating that parliamentary sovereignty on such matters should not be exported to a ‘foreign court’. Other senior judges have argued that Strasbourg undermines the democratic process, and that the application of ‘Convention rights’ trespasses into political fields, contrary to what the respective roles of government and judiciary should be under the British constitutional set-up, with its emphasis on political constitutionalism.

Quick links

The total trade deficit in the first quarter of the year was £19.4 billion.

The Court of Appeal has found the Rwanda policy unlawful due to flaws in Rwanda’s own asylum system.

EU member states are demanding Rwanda-style deals to curb illegal immigration.

Deportations to Rwanda need a deterrence rate of 37 per cent for costs to break even.

Chinese CCTV cameras used across Britain are vulnerable to hacking.

Miriam Cates has proposed a sex education transparency bill.

Residential property sales decreased by 32 per cent in England last year.

A Bank of England rate setter said interest rates do not need to rise further.

Former political opponents George Osborne and Ed Balls are starting a podcast.

A pre-conceived report about systemic racism in cricket said what it was always going to say.