A strange irony: How the EU withdrawal process ended up saving the Human Rights Act

Dr Frederick Cowell, Lecturer in Law, argues that the UK’s exiting the EU may have saved the Human Rights Act and secured Britain’s long term future as party to the European Convention on Human Rights (ECHR).

The Brexit process has in short pushed the UK government away from what was until recently a clearly stated policy – to repeal the Human Rights Act 1998 (HRA), replace it with a British Bill of Rights and eventually withdraw from the ECHR. Both a referendum on Britain’s membership of the EU and HRA repeal, were in the Conservative Manifesto for the 2015 General Election. Repeal of the HRA, which brings the ECHR into UK law and requires UK judges to take the decisions of the European Court of Human Rights into account, has been a stated aim of the Conservative Party since 2006. In fact its position on the HRA was clearer in its 2010 manifesto than its commitment to EU withdrawal. Coalition with the Liberal Democrats and the creation of the Commission on a British Bill of Rights appeared to kill the idea but in 2014 the Conservative Party Published its proposals for a British Bill of Rights to replace the HRA.

Entitled Protecting Human Rights in the UK it proposed breaking the link between UK courts and the European Court of Human Rights and withdrawing from the ECHR if that was not possible. If implemented this would have left the UK the only nation in continental Europe (apart from Belarus) that was outside the ECHR. It would likely have been incompatible with the Treaty on the European Union, which commits EU member states to respecting human rights, as defined by the ECHR, as a core EU value. However, as the 2014 policy document went onto note ‘our relationship with the EU will be renegotiated in the next parliament’ and if there were any problems with the UK’s new bespoke human rights agreement this would be addressed ‘as part of the renegotiation.’ Linking leaving the EU with ECHR withdrawal made sense in terms of political framing. Although being outside the EU has no bearing on ECHR membership – Norway and Switzerland are not EU member states but have been party to the ECHR for almost half a century – the European Court of Human Rights was considered another ‘foreign court’ in the newspapers and political circles that would go onto become the most enthusiastic Brexit supporters.

There is no evidence that renegotiating EU values so as to allow the UK to withdraw from the ECHR but remain in the EU, was ever seriously discussed during David Cameron’s attempted renegotiation of EU membership in late 2015. Given that both the EU Justice Commissioner and the President of the European Commission had indicated a few years earlier that any member state attempting to withdraw from the ECHR would raise concerns ‘as regards the effective protection of fundamental rights’, it is highly unlikely that Cameron would have been successful even if he had tried. After winning the 2015 General Election the entire project appeared to slow down; the then Justice Secretary Michael Gove promised proposals on a British Bill of Rights to repeal the HRA within months, but by the end of 2015 nothing had been published. By then academics and legal commentators had started to highlight the constitutional difficulties of HRA repeal, especially in relation to devolution, but the government continued to signal they were fully committed to HRA repeal.

In June 2016 when Theresa May became Prime Minister she was expected to continue with the policy – she was a long-time opponent of the HRA from her days asHome Secretary, when she infamously and incorrectly claimed that HRA had blocked her from deporting someone because of their pet cat. But in December 2016 the Attorney-General Jeremy Wright announced that HRA repeal was delayed until after the conclusion of Brexit. In the 2017 Conservative General Election Manifesto HRA repeal and ECHR withdrawal was effectively cancelled for the duration of the next parliament. This was far from popular among the Conservative Brexit supporters but the numbers in the 2015-2017 parliament made repeal difficult (a problem which worsened after the 2017 election). Also with all of the constitutional difficulties over Brexit there was little appetite to create an additional set of constitutional problems.

Since the autumn of 2017 the European Parliament has been clear that an important component of a future EU-UK relationship would be the UK’s continued ECHR membership. In the summer of 2018 the European commission draft report on future security cooperation again made membership of the ECHR an essential condition. Theorists of international relations and international law have argued that one the core reasons for states joining the ECHR was to create a form of democratic lock-in where the rights contained in it and the frameworks designed to protect them would be locked in place, in part because it would be hard for states to leave the Convention. Although it is superficially easy for a country to leave the ECHR, an exit mechanism is contained in Article 58 of the Convention and there no direct economic consequences to a state for doing so, the ECHR’s interconnection with other European institutions creates a layer of political restraints constraining exit. The prospect of an exit agreement was clearly used as a lever by the European Parliament in their March 2018 resolution, which required any future trade agreement to be in “strict accordance” with EU values, effectively keeping the UK in the ECHR.

This could be important for securing the HRA’s future because there remains a significant political appetite for its repeal. Human Rights campaigners in the UK are often reassured by polling showing that HRA repeal is not a high public priority. But polling taken over a number of years in response to controversial or high profile decisions from the European Court of Human Rights has identified a significant degree of sympathy for the arguments advanced by the ECHR’s critics. Many of the arguments ranged against both the EU and the ECHR deploy what Fiona de Londras calls the ‘new sovereigntism’ argument – the idea that states should only engage and comply with international courts as and when they want to. Dominic Cummings, the leading political strategist for the Vote Leave campaign, announced earlier this year that he wants a referendum on the ECHR, noting that many leave voters would be ‘mad’ when they realise the UK was still party to it. Given this context the external economic and political forces locking the UK into being a party to the ECHR as part of the Brexit process have probably secured the HRA’s future – for now.

This piece was first published on LSE’s blog

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The food politics of Brexit

Dr Alex Colás and Dr Jason Edwards discuss the crucial place of food and drink in the Brexit negotiations, and how they could impact domestic and international politics. They are authors with Jane Levi and Sami Zubaida of Food, Politics, and Society: Social Theory and the Modern Food System (University of California Press), which will be launched at a reception on 13 December. Find out more and book your free place here.

Whatever the outcome of ongoing Brexit negotiations, one conclusion is abundantly clear: food and drink are critical to this process, and more widely to both domestic and international politics. This is most obvious in relation to the UK’s food security. With just over 30 per cent in value terms of Britain’s just-in-time food supply coming from within the European Union, the UK’S food security is likely to be compromised. A recent authoritative report warns that Britain’s nutritional and political stability could be undermined by price volatility, sharpening inequalities and erosion of public trust following Brexit. Far from being an anecdotal sideshow, the effects of the divorce on Britain’s food economy are starting to become apparent in both the agricultural and hospitality sectors, so dependent on EU labor.

The consequences of Britain’s withdrawal from the EU go beyond the high politics of summitry, increasingly appearing in the everyday lives of UK residents, touching on issues like national and regional identities, public health, fisheries and agriculture, commodity supply chains, fast food workers, food standards and changing consumer tastes. Products like Stilton, Arbroath Smokies or indeed Scotch whisky, all currently listed by the EU as having Protected Designation of Origin or Geographical Indication, are expected to retain this status only if there is a UK alignment with European regulations, and will otherwise have to apply as a ‘third country’ producers. The great British institution of the Friday night curry is also affected by Brexit. During the 2016 referendum campaign, leading Brexiteers secured the support of the Bangladesh Caterers Association – a major organisation representing the sector – with the promise that leaving the EU and ‘taking back control’ of immigration would ‘save our curry houses’. Two years on, representatives of this emblematic sector of the country’s catering industry say they are disappointed that the final Brexit deal is likely to offer EU citizens preferential access to the UK labour market. News headlines have equally highlighted the public health and food safety dimensions of Brexit as farmers and consumers worry about the prospect of chlorine-washed chicken, hormone-treated beef or genetically-modified organisms entering the UK food chain through trade deals with countries outside the EU.

All of these concerns have an extensive history in British and continental politics. In our new book Food, Politics, and Society we take the long view and argue that in fact questions of food prices and international trade; cuisine and identity; state regulation of food and drink; or the public health and environmental consequences of different food regimes have been central to the development of western social theory since the eighteenth century.

Classical political economists such as Adam Smith, David Ricardo and their eminent critic Karl Marx should to different degrees be seen as theorists of food politics. Food is key to Smith and Ricardo’s famous accounts of rent and comparative advantage, while the importance for Marx’s work of the agro-ecological concept of ‘metabolism’ has recently been expertly recovered by Marxian scholars. Closer to our times, theories of nationalism, the public sphere, class or gender have emphasized the centrality of food and drink to the reproduction of these social phenomena.

It is useful to place the ongoing policy debates and political disputes surrounding the food politics of Brexit in wider historical and sociological perspective because food and drink have been of critical importance to European geopolitics in the modern age. In the nineteenth century, ‘Gastronationalism’ played a significant part in the formation of national identity in major states like Italy and France, and the invention of national and sub-national food cultures remains a feature of politics across Europe (an activity, somewhat ironically, much supported by the EU). But modern national food cultures have been shaped by a more-or-less conscious mimicry or rejection of other food cultures. The traditional British distaste for garlic – a French predilection – developed at the same time as a public eating culture massively influenced by French ideas of culinary technique and table service. The ‘revival’ of British food over the last twenty years is in fact far more of an invention shaped by foreign food developments, such as the Slow Food movement originating in Italy.

At the same time, the struggle to define national cuisines within states has often mirrored deep divides along lines of class, gender, and ethnicity. Brexit is – or has become – more than a disagreement over the economic costs and benefits of EU membership. It has expressed underlying conflicts in modern British society, and these conflicts are reflected in contending visions of what British food is and should be. Post-Brexit, British Gastronationalism is likely to be reinvented once again. As one restaurant critic recently put it: ‘In a post-Europe landscape, we’ll drink only Denbies red wine from the vineyards of Dorking and eat fish and chips off fancy plates while listening to vintage Arctic Monkeys’.

Alex Colás and Jason Edwards teach in the Politics Department at Birkbeck College and convene the Birkbeck Food Group. Get free tickets for the launch reception on Thursday 13 December where discount copies of Food, Politics, and Society: Social Theory and the Modern Food System will be on sale.

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Hard Brexit? Only if it’s free

This post was contributed by Professor Eric Kaufmann from Birkbeck’s Department of Politics. It was originally published on the LSE’s British Politics and Policy blog.

Lowering immigration was the key motivation behind the Brexit vote, and how to achieve it dominates the current political debate. Drawing on new data, Eric Kaufmann analyses the propsects of support for a hard and a soft Brexit, based on how much Britons would be willing to pay to reduce the number of Europeans entering the UK.

A new survey shows most Britons are not willing to pursue hard Brexit if it will cost them personally. Thus far, the economic indicators post-Brexit don’t look bad. Consumer spending and investment are holding up well, despite a lower pound. But if the going gets tough, there is a two-thirds majority willing to accept current levels of EU migration to retain access to the single market.

The leading motivation for Leave voters was reducing immigration while Remain voters prioritised the economy. This hasn’t changed. According to my YouGov/Birkbeck/Policy Exchange survey data, two-thirds of British people want less immigration, including 47 percent of Remainers and over 91 percent of Leavers.

Hard Brexit is a good way to bring numbers down. However, some suggest that when Theresa May triggers Article 50, the EU will drive a hard bargain, inflicting pain on the British economy. With economistsclaiming entry to the single market is worth 4 percent of GDP by 2030, I asked how much the average Briton is willing to sacrifice to reduce European immigration in the event the doomsayers are right. The final deal between Britain and the EU over leaving will hinge on how much economic pain, in the form of reduced market access, Britain is prepared to absorb to restrict European immigration.

The survey, carried out by the polling firm YouGov, asked a sample of over 1500 people the following question: “Roughly 185,000 more people entered Britain last year from the EU than went the other way. Imagine there was a cost to reduce the inflow. How much would you be willing to pay to reduce the number of Europeans entering Britain?” The options ranged from “pay nothing” for no reduction to paying 5 percent of personal income to reduce numbers to zero. Each percent of income foregone reduced the influx by 35,000. The results are shown in figure 1.

kaufmann_1

Source: YouGov survey, August 20, 2016.

Among those surveyed, and excluding those who didn’t know, 62 percent said they were unwilling to pay anything to reduce numbers, and would accept current levels of European immigration.

kaufmann_2

Source: YouGov survey, August 20, 2016.

As figure 2 shows, even among those who said they voted to leave the European Union, 30 percentreported they would prefer the current inflow of 185,000 to paying any of their income to cut the inflow. In other words, there is a significant ‘soft’ component within the Leave vote.

On the other hand, there is a considerable core of Brexit voters willing to tighten their belts to reduce migration: over a third of Leave voters indicated they would contribute 5 percent of their income to cut European migration to zero. More than half of Brexiteers are willing to pay at least 3 percent of their income to reduce European net migration from the current 185,000 to under 80,000. The average person who voted Conservative in the 2015 General Election is willing to stump up 2.5 percent of their pay packet to reduce European immigration to half its current level.

This means that if the costs of Brexit mount in line with pessimistic predictions, most British people favour a deal that preserves market access even if this results in only limited reductions in European immigration. May’s Conservative voters will put up with more pain, but not if it costs more than 2 percent of GDP. This suggests a deal between Theresa May and her EU interlocutors based on significant market access in exchange for limited migration controls may be acceptable to the 45 per cent of voters who currently back her party. It certainly will pass muster with a majority of the electorate.

If the economy continues to hold steady, the question is moot and hard Brexit remains a strong option. But if pain is on the way after Article 50, Middle Britain will be inclined to prefer soft over hard Brexit.

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Assimilation and the immigration debate

This article was written by Professor Eric Kaufmann of Birkbeck’s Department of Politics. It was originally published on the Fabian Society‘s blog.

Immigration has proven one of the hardest issues for Britain’s main parties to address, and UKIP has been the beneficiary. But, according to my YouGov/Birkbeck/Policy Exchange survey data, many UKIP voters will change their views on immigration if politicians can reassure them by highlighting the impressive rate of assimilation already taking place in British society. This doesn’t obviate the need to control immigration, but it offers a partial solution for what is a cultural problem, not an economic one.

In a hard-hitting piece in a recent Fabians’ report by senior Labour figures,Facing the Unknown, pollster James Morris writes that Labour must engage with the genuine concerns many ordinary Britons have about immigration. However, Labour’s leaders continue to deflect concerns onto the comfortable terrain of public spending and local planning. On Andrew Marr’s programme, when asked about his views on free movement, Jeremy Corbyn talked up the idea of an immigration impact fund. Sadiq Khan, in a recent article in the Chicago Tribune, spoke mainly about housing, planning and laws. Unfortunately, academic research suggests these policies will have little or no effect on the public’s view of immigration.

The consensus from scholarly research across the West is that cultural, not economic, motivations are central for those who want lower immigration. Immigration strips away the hazy illusion in the minds of many White Britons that their group is more or less the same thing as Britain. This ethnicises the majority, notably those who cherish their cultural traditions, myths and memories.

In response, politicians from Gordon Brown to David Cameron have articulated a centralised Britishness based on common values and institutions. But the  question politicians need to be asking is not, ‘What does it mean to be British,’ but rather ‘What does it mean to be WhiteBritish’ in an age of migration. This is not racist, but reflects the fact that all ethnic groups – including the majority – want their community to have a future.

One liberal way groups perpetuate themselves is by assimilating others who wish to join. And the fact is that majority groups have an in-built advantage due to their influence on the mainstream national culture. In view of this, it is astounding how little we hear about the fact many members of ethnic minority groups – especially Europeans and those of mixed race – intermarry or identify with the White British majority.

Having written about this following UKIP’s ascent in 2014, I was curious whether knowing these facts might change the way White British people think about immigration. To find out, I conducted a survey, but split it into three random groups. All answered questions about immigration, but two of the groups were assigned to read a short passage about national identity.

Nations are like rivers: on the one hand, you can never put your foot in the same water twice, but if you look at it from a distance, it is unchanging. My first passage took the first path, offering the conventional storyline about a rapidly changing Britain:

‘Britain is changing, becoming increasingly diverse. The 2011 census shows that White British people are already a minority in four British cities, including London. Over a quarter of births in England and Wales are to foreign-born mothers. Young Britons are also much more diverse than older Britons. Just 4.5 per cent of those older than 65 are nonwhite but more than 20 per cent of those under 25 are. Minorities’ younger average age, somewhat higher birth rate and continued immigration mean that late this century, according to Professor David Coleman of Oxford University, White British people will be in the minority nationwide. We should embrace our diversity, which gives Britain an advantage in the global economy. Together, we can build a stronger, more inclusive Britain.’

The second changed the tune to one of timeless continuity through assimilation:

‘Immigration has risen and fallen over time, but, like the English language, Britain’s culture is only superficially affected by foreign influence. According to Professor Eric Kaufmann of the University of London, a large share of the children of European immigrants have become White British. Historians tell us that French, Irish, Jews and pre-war black immigrants largely melted into the white majority. Those of mixed race, who share common ancestors with White British people, are growing faster than all minority groups and 8 in 10 of them marry whites. In the long run, today’s minorities will be absorbed into the majority and foreign identities will fade, as they have for public figures with immigrant ancestors like Boris Johnson or Peter Mandelson. Britain shapes its migrants, migration doesn’t shape Britain.’

It’s rare for stories such as these to shift people’s attitudes on contentious issues like immigration, yet this is precisely what happened. When White British respondents read a story about change and diversity, this made them slightly more worried about immigration than when they read no passage. But when they read about how immigrants are assimilating into their ethnic group, they became noticeably more relaxed. This is especially true for working-class, tabloid-reading or UKIP-voting whites, many of whom simply haven’t heard this argument. In figure 1, for instance, 61 per cent of white working-class (C2, DE) respondents who read the diversity passage wanted immigration reduced a lot compared to 47 per cent of those who read the assimilation passage. Those who read no passage were in the middle, at 56 per cent.

Figure 1

Source: Yougov/Birkbeck/Policy Exchange survey, Aug. 20, 2016. Note: results significant at p<.05 level.

Respondents were also asked about the extent to which they were willing to pay for ‘hard Brexit’. In the event that Brexit causes financial hardship, this is a barometer of how much people would be willing to trade off access to the benefits of the single market in order to reduce European migration. Once again, what we see is that whites, especially working-class, tabloid-reading and UKIP voters, are reassured by the facts on assimilation. In Figure 2, for instance, the share of White British UKIP voters willing to pay 5 per cent of their income to cut European immigration to zero drops from 45 per cent after reading the diversity story to 16 per cent when reading the assimilation piece.

Figure 2

Source: Yougov/Birkbeck/Policy Exchange survey, Aug. 20, 2016. Note: results significant at p<.05 level.

If this is the case, why is it that politicians continue to hammer away at the diversity story? Probably because it’s the mainstream view and therefore all they know. In addition, they may be skittish about offending minorities who fear assimilation. But it’s not inconsistent to say, as Sadiq Khan did, that minorities can keep their culture, while pointing to evidence of voluntary assimilation. Dual identity is also common, with minorities pulled between their roots and the culture of the majority. For instance many British Jews identify with their ethnic group, yet most consider themselves – and are considered to be – White British.

It’s also the case that national identity is not monolithic but in the eye of the beholder: some members of minority groups may prefer to see Britain as ever-changing while conservative white Britons consider it a timeless river. It’s up to politicians to reach out to both with a different message, secure in the knowledge there is no single way of perceiving the nation.

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