In his opening remarks Michel Barnier said that one serious problem in the negotiations was the UK’s refusal to commit to remaining party to the European convention on human rights (ECHR). Barnier said this could make cooperation on criminal justice and law enforcement very difficult. He said:
Ambitious cooperation in [criminal justice and law enforcement] requires commitment on both sides with respect to fundamental rights of persons. Yet the UK informs us that they do not wish to commit formally to continuing to apply the European convention on human rights, nor do they wish the European court of justice to play its full role in interpreting European law.
When it comes to security and legal cooperation, judicial cooperation, you are talking for example about the exchange of personal data, sometimes very personal data, like DNA. In that area this is a must-have for us …
I say this is serious, I say this is grave because if the United Kingdom’s position does not move, it will have an immediate and concrete effect on the level of ambition of our cooperation which will remain based on international conventions but will not be as ambitious as we wish.
In its document (pdf) setting out the UK negotiating position, the British government does not explicitly say it will reject an agreement that involves committing to continued membership of the ECHR. But it does hint at this, saying:
The agreement should not specify how the UK or the EU member states should protect and enforce human rights and the rule of law within their own autonomous legal systems.
The disclosure of the true nature of the government’s position will fuel fears that at some point in the future Boris Johnson would like withdraw the UK from the ECHR, which has always been unpopular with Tory rightwingers. As the Sunday Telegraph recently reported (paywall), Dominic Cummings, the prime minister’s chief adviser, is on record as opposing the ECHR. In 2018 he wrote:
If I get involved in politics again, then a referendum on the ECHR should be high on the agenda — and bear in mind most people probably think we’re already leaving it because of the 2016 referendum, so imagine how mad they’ll be when they realise we’re still in it.
However, withdrawing from the ECHR could be hugely problematic, not least because it is an integral part of the Good Friday agreement.
Asked on Monday at the No 10 lobby briefing if the government was committed to remaining a signatory to the ECHR, the prime minister’s spokesman just said that the UK was a signatory and that there was no change in the UK’s position.