The ECHR will never allow us to control migration
JOSEPH DINNAGE
With the air of a parent trying, but not quite managing to connect with their wayward teenager, Keir Starmer is attempting to keep up with Britain’s shifting Overton window. In his days as a human rights lawyer, Starmer would not have dreamed that in years to come, he’d be calling on his European neighbours to reform the European Convention on Human Rights (ECHR) to make it easier for him to deport illegal immigrants.
In an opinion piece in The Guardian, he and his Danish counterpart, Mette Frederiksen, have urged other European leaders to agree on a ‘modernisation’ of how the ECHR can be interpreted by its signatories. Today, David Lammy and Richard Hermer will join delegates from other nations in Strasbourg to argue for certain clauses in the agreement to be amended. The two Articles which Lammy and Hermer will say should be reformed are 3 and 8: the former protects against torture, inhuman and degrading treatment, and the latter protects the right to a family life.
About time. Lammy and Hermer’s European trip coincides with the release of a report into the British asylum system by the National Audit Office (NAO). The paper analysed a sample of 5,000 asylum cases lodged almost three years ago, and found that over half still did not have an outcome. The NAO found that 35% of people in the sample had so far been granted protection, while approximately 9% were removed from the UK – only about three-fifths of those whose asylum applications were unsuccessful.
In a nation blighted by headlines about the residents of taxpayer-funded migrant hotels going on to commit acts of sexual violence on British streets, an asylum system this inefficient in removing those with no right to be here is unacceptable for many voters.
Certain Labour ministers patently recognise the importance of controlling migration for their future prospects – the issue is now up there with managing the economy as a top priority for British voters. But just how effective will the Government’s attempts at unclogging the migration system prove?
Lammy and Hermer are right to highlight the corrosive effects of Articles 3 and 8 of the ECHR. They have both acted as barriers to deporting some particularly nasty people.
This summer, it was reported that two Brazilian fugitives – Marlon Martins Dos Santos and Nicolas Gomes De Brito – had successfully evaded deportation under Article 3, due to prison conditions in their home country putting them at risk of torture or inhuman treatment. We’re not talking about shoplifters here. Dos Santos was sentenced to 14 years in Brazil for repeatedly raping a girl of 5, but had fled to the UK before he could be imprisoned. De Brito, who fled to the UK in 2019, is wanted by Brazilian authorities for allegedly sanctioning the murder of a rival gang member.
Article 8 of the ECHR was invoked in a now notorious case to prevent the removal of an Albanian criminal. His son’s special needs, including his selective dietary habits, were used to successfully argue in a first-tier tribunal that the boy would struggle to cope in Albania, and that deporting the criminal back to his home country would breach his right to a family life as defined under the ECHR. Although the Home Office overturned this on appeal, the case again shows how the ECHR makes it harder to deport criminals.
The problem with Labour’s approach is that it is rooted in the delusion that our deportation problem can be solved by us and other European states reforming the institution from within. For Starmer, the post-war European settlement on human rights remains sacrosanct – to withdraw from it would be an unforgivable dereliction of moral duty. He displayed this attitude in the article he co-wrote with Frederiksen:
This week European ministers, including from the UK and Denmark, are meeting in Strasbourg to push for a modernisation of the interpretation of the European convention on human rights – so that the convention system, which we believe in, can evolve to reflect the challenges of the 21st century.
Europe has faced big tests before and we have overcome them by acting together. Now we must do so again. Otherwise, the forces that seek to divide us will grow stronger.
Standing up to Strasbourg in this way may feel radical to the likes of Starmer, but it falls far short of the rapidly evolving opinions of many, not just in Britain, but across the West. With Donald Trump dismissing Europe as a ‘decaying’ collection of nations, and JD Vance lambasting European leaders for their poor record on free speech and defence, Euroscepticism has become globalised.
Reform UK and the Conservatives are further ahead of the curve, with both having pledged to withdraw from the ECHR completely in the event of either party forming a government. While Britons are still generally opposed to the idea, almost half feel that it would have a positive impact on our sovereignty and ability to remove illegal migrants.
For those still uncertain, research authored by Peter Lilley for the Centre for Policy Studies shows that withdrawal may be our only option. The reality is that regardless of how loose an interpretation a country is able to take of the terms of the ECHR, any amount of responsibility abdicated to a foreign court inevitably politicises judicial decision-making and erodes sovereignty.
The arguments against leaving are often either sensationalist, portrayed as though leaving the Convention would lead to a fascist, post-rights dystopia; or centre around constitutional logistics, that withdrawal would breach our obligations under the Good Friday Agreement (GFA) or Trade and Cooperation Agreement (TCA) with the EU. The last I checked, non-member states such as Canada or New Zealand hadn’t lapsed into authoritarianism, though I suppose that depends on your reading of wokery. And fortunately, neither the GFA nor TCA explicitly require us to be signed up to the ECHR.
Outside the yoke of Brussels, Britain is uniquely placed among European nations to restore sovereignty to its judicial system. Yet unless the Prime Minister is able to overcome his biases, then any trip to Strasbourg or Brussels to beg a recalcitrant, social democratic elite to grant us greater control over our affairs will be seen as the pathetic display that it is.
This Government is hardening its line on migration because it hopes to stem the rise of the ‘Far Right’, which despite what Guardian headlines would have you believe, does not yet exist in any meaningful way in mainstream politics. Though the bitter irony is that with each speech or manoeuvre that is not followed by visible action, the crisis at our borders intensifies, and Starmer might well unleash those forces he has spent his career fighting.
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This article (The ECHR will never allow us to control migration) was created and published by CapX and is republished here under “Fair Use” with attribution to the author Joseph Dinnage
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Jenrick is right – any attempt to reform the ECHR is ultimately doomed to fail
HENRY HILL
Back in May, in the wake of Sir Keir Starmer’s since-recanted ‘island of strangers’ speech on immigration, we wrote about the doomed pattern into which the Government was falling:
“Now, Sir Keir Starmer looks to be once again teeing himself up for a command performance in the traditional ritual suicide of a British political consensus: opening the Overton Window real wide and then hurling oneself out of it.”
The basic pattern described there is when a party has recognised the need for change on one or more areas on a political level, but not actually – or at least, not sufficiently – changed its mind, resulting in concessions which help to shift the overall balance of the debate in the new direction without stabilising the government’s position.
It’s not an uncommon problem; as we put it in another editorial last month, it’s important not merely to face up to unpleasant realities but to do so quickly enough. But nowhere is it more obvious than with Labour’s push for reform of the European Convention of Human Rights.
The UK and 26 other signatories of the Convention have signed a statement calling for “curbs on how the treaty is applied to migrants and foreign criminals”, according to the Daily Telegraph:
“The statement said the ECHR should not stop nations deporting foreign criminals even if they had established a family in that state and should introduce constraints on foreign offenders blocking their removals on the grounds that it would lead to inhuman or degrading treatment in their home countries.”
You can see the superficial appeal of this to someone trapped between not wanting to leave the ECHR and its increasingly intolerable impact on how we’re governed. A negotiated update to the Convention would be thoroughly multilateralist and, I suppose the theory must go, perhaps shore up Britain’s position as a signatory.
Robert Jenrick is quite right, however, to say that the whole thing is doomed. It isn’t just that any negotiated changes will take ages to deliver (the last set took nine years) if they are delivered at all (they require unanimous consent from all 46 signatories). The problem is the fundamental structure of the ECHR itself.
Much of the debate over the past couple of days, at least in quarters sympathetic to Labour’s reform attempt, has echoed the idea that the Convention is somehow out of date, drawn up in a different era and unsuited to modern conditions. Yet this is really a very misleading picture. In fact, were the ECHR still interpreted today as it was in 1948, when we signed it, there would likely be no pressure whatsoever to leave. At that point its provisions were interpreted so narrowly that both capital and corporal punishment were compliant!
No, the problem is a structural one which began with the creation of the Strasbourg court (which did not exist when we signed up). It is the court which has, through case law, continually expanded both the interpretation of the Convention rights and the remit of the Convention itself, for example into war zones or by making government’s responsible not merely for their own actions but what happens to deportees after they’re deported.
This is a similar process to the way the Supreme Court carved out its modern role in the United States, and reflects the fact that the Convention is a de facto codified constitution for its signatories. But where a normal such constitution applies only to one country, the ECHR applies to 46, and where a normal codified constitution usually has political mechanisms for amendment, the ECHR does not.
As a result, the Convention is – by design – anti-political. That’s the whole point, after all: that it elevates certain rights above the political realm. There is an inherent tension between such an arrangement and democracy, and even on their own terms suggestions that the Strasbourg judges could be more responsive to political concerns are riddled with tension; the whole point of the court is, after all, to insulate the Convention rights from political concerns.
This is ultimately why any reform attempt will fail. Whilst the UK is hardly a stranger to conflict between the judiciary and the politicians, one of the most important features of our model is that Parliament is the ultimate lawmaking authority, it can make law more-or-less continuously, and its democratic mandate is refreshed no less frequently than every five years. As a result, political and legislative action occurs at almost the same tempo as judicial development of case law.
Under the Convention, this is not the case. There is instead an extreme mismatch between the development of case law (continuous) and political input (glacially slow and very rare). This makes it impossible for the interpretation and implementation to track the evolution of public opinion, even if it wanted to – and the difficulty of politicians ever securing change makes the judges (and activist campaigners and lawyers who bring cases) less mindful of the need to do so.
There is a way to do rights which leaves less scope for judicial adventuring and keeps the whole thing on a shorter political leash: to have much more detailed provisions (rather than broad statements of nice things with lots of room for interpretation) and an easy, regular way to update those provisions. But if that sounds familiar to the reader, it’s because I’m describing legislation.
This article (Jenrick is right – any attempt to reform the ECHR is ultimately doomed to fail) was created and published by Conservative Home and is republished here under “Fair Use” with attribution to the author Henry Hill
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