Joanna Cherry: Europe knows Scotland wants no part in ditching ECHR

The interim action taken to stop the flight on Tuesday evening was ultimately successful at the European Court of Human Rights in Strasbourg which, it seems, attached greater weight to the concerns of the UN High Commission on Refugees than the English courts.

That is not to say the legal action in England did not meet with some degree of success. Clearly the threat of such action made the Home Office take some people off the flight and the arguments have yet to be heard in full at judicial review.

By pure chance I was in Strasbourg visiting the European Court of Human Rights and the Council of Europe when the decision was announced. I was there leading a delegation from Westminster’s Joint Committee on Human Rights, a committee of six MPs and six peers with the responsibility of scrutinising the protection of human rights in the UK. We could not have been there at a more important time.

The British Government’s plans to “update” the Human Rights Act and distance itself from the ECHR are already causing consternation in Strasbourg and the Tory threats to withdraw from the Convention altogether which inevitably followed the adverse court decision have increased the level of concern.

We were able to provide some level of re-assurance that the UK Government’s antipathy towards the ECHR is not widely shared at Westminster or in the other parts of the UK. Our committee is a cross-party one which includes Conservative MPs and peers. Despite that, we have produced two unanimous reports concluding that the incorporation of the rights contained in the ECHR into domestic law through the Human Rights Act (HRA) is working well and does not need to be changed.

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In my discussions with parliamentarians at the Parliamentary Assembly of the Council of Europe and officials in the Council of Europe, it was clear there is a high level of awareness of the different direction of travel in Scotland. The Scottish Government and Parliament’s commitment to extending, rather than rolling back, human rights protections is applauded.

The First Minister’s announcement of a second independence referendum was also mentioned. One very senior parliamentarian said to me that if the UK leaves the ECHR, that will strengthen the case for Scottish independence.

The Convention was agreed, following the great conflicts of the mid-20th century, to protect Europe from a resurgence of dangerous populism. At that time, it was clear the only way to avert future upheaval was to strengthen national parliaments and constitutions as vital checks on executive power, and to take steps to safeguard fundamental freedoms and entrench the rule of law.

Now, once again, we see the rise of populism in Europe. This means the convention is more important than ever. The UK was a founding member and is still held in high esteem in Strasbourg. The primary concern of all those we spoke to there was that if the UK were to leave the ECHR, or even just to disengage from it, it would send the wrong message to countries in eastern Europe who wish to water down their human rights protections.

Russia, now expelled from the Council of Europe because of the invasion of Ukraine, has, in the past, used the UK Government’s antipathy to the convention to justify its own attempts to ignore the human rights protections to which they once signed up.

We also heard that in recent months British Government ministers have given repeated assurances to Council of Europe interlocutors that they would not withdraw from the ECHR. If they break their word on this, significant damage will be done to the UK’s reputation internationally.

It would also be a breach of the Trade and Co-operation Agreement with the EU – Boris Johnson’s oven-ready deal – in which the UK promised to adhere to the ECHR to guarantee future law enforcement and security co-operation with the EU. However, given the willingness to breach their international treaty obligations in relation to the Northern Irish Protocol and Boris Johnson’s track record, there is every chance they could depart the ECHR despite these promises.

Democracy, human rights, and the rule of law are integral to the Council of Europe and the ECHR. Boris Johnson has repeatedly shown that he hasn’t much time for human rights or the rule of law if either gets in the way of what he wants. When it comes to Scottish independence, in respect of his refusal to acknowledge multiple mandates for a second independence referendum, he has also shown that he does not much care for democracy either.

So, it was good to hear the Scottish Government re-iterate this week that holding an independence referendum should not be dependent on his permission. That said, it is vital that we should proceed in a lawful and constitutional fashion to secure international recognition of the outcome. I was delighted that, when Mike Russell’s 11-point plan was announced in January 2021, the SNP adopted my suggestion of testing the waters with a Holyrood bill for indyref2. There is, of course, a well-respected body of legal opinion that the Scottish Parliament may have the competence to hold an independence referendum although ultimately this is likely to be challenged in the courts.

I was disappointed not to be consulted on the detail of the delivery of this course of action given my success in the Article 50 and prorogation cases but the Scottish Government has its own lawyers and I look forward to seeing the fruits of their labours on this front.

Angus Robertson told us on the radio this week that the referendum will be in October 2023. On Tuesday the FM told the press she would give Parliament a significant update “very soon” and that that meant “at some point before Parliament goes into recess”.

On the assumption that Boris Johnson won’t grant permission, the timetable for getting a bill through Holyrood and resisting a court challenge in sufficient time to hold a referendum in October next year is tight, so I am not surprised the FM has promised this update before recess.

I suspect that no amount of fine words about democracy will change Boris Johnson’s mind on indyref2. It’s pretty clear that this can only be done by actions that force his hand. As I have said before, it is never a good idea to engage your enemy on just one front so I hope the FM’s announcement of the Holyrood bill and indyref2 timetable will be accompanied with other initiatives, including the Constitutional Convention promised in January 2020.

It is possible that the timetable for an independence referendum could be knocked off course by an early General Election. Boris Johnson does not have to go to the country until 2024 but he, or a successor, could choose, or be forced by events, to go earlier.

If that happens, depending on the progress of any court challenge, we may find ourselves using a General Election as plebiscite on independence. It would indeed be a rich irony if both my plan B and that of Angus Brendan MacNeil and Chris McEleny became SNP policy. I hope the fact that mine already has, and that theirs might, will give pause for thought to the minority of activists who behaved so badly when it was sought to debate and discuss these alternative plans. If nothing else, it is a reminder of the importance of respectful debate as we go forward.

As I left Strasbourg on Wednesday preparations were under way at the headquarters of the Council of Europe for a celebration of Bloom’s Day, an annual commemoration and celebration of the life of Irish writer James Joyce. Ireland currently holds the presidency of the Council and its tricolour flies proudly outside the Palais with the other members’ flags.

I look forward to the day when the Saltire joins it. A different future for Scotland is indeed possible but it will take hard work and a clever strategy and campaign.