Conservative leader Kemi Badenoch has effectively committed her party to a policy of conflict, and possibly even rupture, with the EU, following her latest pronouncements, writes Simon Nixon. She recently suggested in a newspaper article that anyone opposing her policy of withdrawing from the European Convention on Human Rights (ECHR) or ditching net zero commitments would be considered 'not serious' and excluded as a Conservative candidate at the next election. She then withdrew the party whip from Gavin Barwell, a member of the House of Lords who criticised her stance.
European Dimension Overlooked
Westminster has mostly viewed this through a domestic lens: a Tory leader prepared to jettison centre-right supporters in the hope of preventing further rightwing defections to Reform UK. What has been missing is the European dimension. Were the Conservatives to return to power – which polls suggest is possible in alliance with Reform UK – Badenoch's ideological red lines will resurrect the ghost of 'no deal' Brexit.
The UK's continued membership of the ECHR underpins every element of its post-Brexit relationship with the EU. Article 763 of the trade and cooperation agreement (2021) commits both sides to adhere to shared values, including the human rights treaties to which they are signatories. Article 771 makes clear that this commitment is an essential condition of the deal, and 772 states that in the event of a breach, the other party has the right to suspend or terminate the agreement.
Good Friday Agreement at Risk
The EU insisted on those references above all to protect peace in Northern Ireland, notes Catherine Barnard, professor of EU law and a fellow of the UK in a Changing Europe thinktank. The ECHR is embedded in the Good Friday agreement, in which Britain committed to enshrining the convention rights in Northern Irish law. The Windsor framework, the deal hammered out by Rishi Sunak, specifically commits Britain to 'no diminution of rights, safeguards or equality of opportunity' as set out in the Good Friday agreement.
ECHR membership also underpins many other areas of cooperation, including data sharing and criminal extradition arrangements. Even the Gibraltar agreement, signed on 15 July, requires both sides to remain signatories. A British government that left the convention would be pulling on a thread that runs through the entire fabric of the post-Brexit relationship.
Conservatives' Complacency
Conservatives claim the danger is overblown, that the EU would never let a dispute over the ECHR detonate an important trading relationship. But that smacks of the complacency apparent throughout the Brexit process. David Wolfson, the shadow attorney general, argued last year that quitting the ECHR would not breach the Good Friday agreement because it only required convention rights to be accessible in domestic courts. Other legal experts, not least in Northern Ireland, disagree, noting that the reason the ECHR is in the Good Friday agreement is to ensure those rights are protected by a body independent of the British state.
Net Zero and Trade
The trade and cooperation agreement's article 772 also states that 'an act or omission that materially defeats the object and purpose of the Paris agreement shall always be considered a serious and substantial failure' to fulfil the 'essential obligations' of the agreement. Depending on where Badenoch's anti-net zero policy lands, that could spell serious trouble for the trading relationship. Its provisions to level the playing field hinge on shared climate goals.
Europeans may take Badenoch's grandstanding as further evidence that British politics remains 'unserious'. But this would be complacent. As the global order fragments and Europeans find themselves squeezed by an aggressive Russia, coercive US and mercantilist China, the UK-EU relationship has become vital to European security. Both sides have a responsibility to solidify it ahead of the next UK election.
