The Brexiteers have got their split from Rome. Next they’ll try to dissolve the monasteries.

So that’s that then. Theresa May has announced that she’ll trigger Article 50 by the end of March. Therefore, unless Mishcon de Reya pull off a spectacular victory against the attorney general and his squad of QCs in court, it seems likely that the Brexiteers will be granted their divorce.

Like Henry VIII, they’ve got what they wanted: a split from the European consensus. Some, like Daniel Hannan, may choose to leave it at that. But getting their own way will do nothing to pacify most Brexiteers.

Because it’s true that for the Brexit right, the European Union has been their most potent bugbear: a distillation of the faceless institutionalism that they so hate. But once Johnson, Fox and Davis, have seen through their act of supremacy, the ‘Great Repeal Bill’ announced on Sunday, they’ll be looking for monasteries to dissolve – institutions and laws which EU membership has hitherto protected or enshrined.

So Remainers shouldn’t put up their swords – there’s time yet before Article 50 is triggered, and a robust rearguard action will help secure closer ties with the EU than if the would-be Henries are allowed to trample unopposed over the benefits of our membership.

Chief among these will be the European Convention on Human Rights. Although not an EU law, it’s a required qualification for membership of the club. Being part of the EU is the seal on our human rights law – a very useful kind of political ‘lock’ given that Britain doesn’t have a written constitution to prevent politicians denying citizens their rights on a whim.

Of course, the convention has come in for a great deal of flak in recent years by dint of its role in the Abu Qatada case, which caused Theresa May no end of headaches when she was Home Secretary. And it’s cropped up again this week at the Conservative Party conference, with Michael Fallon saying he will act to stop ‘vexatious’ legal claims against the Ministry of Defence under ECHR rules.

Yet if our human rights law proves ‘vexatious’ for politicians, it shows it’s doing its job. It’s not supposed to be suspended at their convenience – it should be universal and indelible.

However, given our prime minister is no fan of the convention, it’s the sort of red meat one could see her throwing to the Brexit pack if they don’t get their way on, say, immigration.

So Remainers need to start thinking now about this and the other institutions that they want to protect should the worst happen and we do get Brexit. More importantly, they should think about what a successful defence looks like – taking a lead from recent examples such as the defeat of benefit cuts in the Lords.

Remainers should get cracking on this now, or the ECHR will go the way of the monasteries.

* Tom Ash is a member in Bristol

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This entry was posted in Op-eds.


  • “they’ll be looking for monasteries to dissolve – institutions and laws which EU membership has hitherto protected or enshrined.

    I fear you’re right but that it won’t stop at institutions and laws. Chances are that the economy will take a big hit in the shortish term of a few years. Even if it goes on to recover over subsequent years, that decline will provide the perfect excuse for a bit of ‘disaster capitalism’ – cutting benefits and privatising services on an unprecedented scale. My knowledge of Tudor history is limited but isn’t that more or less what happened back then? Calling historians…

  • A Trident free, Grammar School free, human rights respecting country with continued membership of the EU and thus with the power to attract industries such as Nissan daily becomes more appealing.

    And if that country is making much more rapid strides towards green energy self-sufficiency than its much bigger but more inward looking neighbour ‘Down South’ , who knows what the next few years will bring.

  • @ Councillor Mark Wright.

    Are you able to produce any evidence to back up your comments on the ECHR Councillor Wright ? I found the following article persuasive :

    “Writing in the Guardian on Monday, Rev Nicholas Mercer, formerly a lieutenant colonel and senior legal military adviser to the 1st Armoured Division during the Iraq war, attacked the government for inventing an “orchestrated narrative”.

    “The idea that the claims are largely spurious is nonsense,” he wrote. “The Ministry of Defence has already paid out £20m in compensation to victims of abuse in Iraq. This is for a total of 326 cases, which by anyone’s reckoning is a lot of money and a shocking amount of abuse. Anyone who has been involved in litigation with the MoD knows that it will pay up only if a case is overwhelming or the ministry wants to cover something up.”

    Full details of Rev Mercer’s article are on line.

  • paul barker 4th Oct '16 - 10:16pm

    Rumours that Diane James has resigned as UKIP leader, LOL.

  • paul barker 4th Oct '16 - 10:52pm

    Re UKIP does anyone know the legal situation ? Is Nigel still Leader ? Do they run the contest again or does it go to the runner up ? Could there be legal challenges ?
    If UKIP are now without a Leader, does that create problems with Electoral Law ?

  • Diane James has resigned

  • Good post Tom.

    It is worth pointing out that on several occasions when the ECHR has ruled against the UK if UK law was amended slightly then the issue may not remain.

    It is worth pointing out over and over the Tories have been on this “Repeal the ECHR” topic for over 10 years and have produced one incoherent attempt at a replacement.

    They need to be held to their failure to explain how they want the law to function. This isn’t the behavior of a government party, or even a serious opposition party, more like an internet pressure group.

  • I don’t understand how it is ‘liberal’ for appointed judges to be able to rule that the offence caused to a homosexual couple should override the religious convictions of a Christian cake maker.

    And why is it so selective in its choice of victim?

  • Bill le Breton 5th Oct '16 - 9:44am

    What does a successful defence look like?

    First it won’t be ‘hand waving’. Second it won’t be ‘grandstanding. Third it will ultimately come (for instance in this Parliament) from strengthening the resolve of sympathetic Tory MPs and Peers, and their sources of funds. Fourth it will probably come when the Executive realises it has made a mistake and needs a pragmatic route back to dry land.

    The benefits U-Turn is indeed a good example as it came as a result of all four conditions above.

    So, the first task is to influence the type of Brexit that will occur over the next 2-4 years. That does not entail the present Lib Dem policy of hand waving and grandstanding. It does entail pressing a positive and viable solution. There must be serious concern within the Tory Party (and among Tory funders) about the apparent distillation of Tory policy over the last four days.

    The best articulation of such a policy is coming from this LSE team –

  • “Yet if our human rights law proves ‘vexatious’ for politicians, it shows it’s doing its job. It’s not supposed to be suspended at their convenience – it should be universal and indelible.”

    Maybe not at “their convenience” but it (or at least part of it) is designed to be suspended at times of emergency of which War may well be one (I’m sure the first time it is suspended there will be a case that ends at the Supreme Court which will clarify).

    I think there is a misnomer that this will makes the armed forced unaccountable. This is far from the truth as they would still operates within their respective discipline laws (the Army Act, Queens Regulations for the Royal Navy etc) and the Geneva Conventions – none of which can be suspended.

    Where I think service personnel require specific protection is where they are operating within their Rules of Engagement (these change according to Theatre and circumstance) and are generally handed to the individual printed on a card. They should be able to trust that these are within the applicable laws and regulations – soldiers are not Lawyers and shouldn’t have to question such a general written instruction. From memory a member of the Parachute Regiment was sent to prison for an incident in Northern Ireland where he was demonstrably following his ROI which transpired to be indefensible in a Criminal Court.

    The same is true for when following other standard practices which later are decided to breach Human Rights. Covering heads of prisoners was taught as standard when I was serving in the 80’s and 90’s. We can all accept that now, unless in exceptional circumstances, this is outlawed, but individual service personnel should not be investigated unless they have continued the practice after being ordered not to.

    I would not wish to provide service personnel with a blanket Nuremberg defence of “following orders”, but I do think that once issued ROI they should be covered if they are followed.

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