ECHR: The ball is back in our court
A political declaration aimed at clarifying key aspects of the European convention on human rights was published on Friday, agreed by all 46 member states of the Council of Europe.
The new declaration is not a rewriting of human rights law (which would take years) - but is a political signal from all the member states to human rights judges that there needs to be greater consideration for public interest and democracy when deciding on migration cases.
It was signed by the 46 members of the Council of Europe, the political body which oversees the human rights court and is entirely separate to the European Union. The document says pressures facing European countries have either changed significant or were unforeseen at the time the human rights convention was drafted. It states have "the undeniable sovereign right" to establish their own immigration policies and remove foreign nationals in the public interest.
There is now more wriggle room for the interpretation of key aspects of migrant-related human rights law. The Chișinău declaration, agreed in the Moldovan capital, is not legally binding but it does put courts under significant pressure to apply the law more restrictively in asylum and immigration cases.
This is politically significant because it says nobody in Europe will or should uphold fictional standards invented by British judges, and that parliament can legislate accordingly without fear of being taken to Strasbourg.
Cynics on the British right are not convinced this will make any difference and point to the fact that it is not legally binding, but they’re missing the point. While not an actual amendment to the ECHR or a ruling, this most certainly is an instrument of influence that judges are duty bound to take into account. Judges must consider the intent of law - and this declaration sets out the political parameters.
As I’ve gone to considerable lengths to point out, Britain's problem is less to do with the ECHR and more to do with a dysfunctional immigration tribunal system and liberal judges. This clarification means that if the problems persist, then the ECHR is being wilfully distorted by British judges and tribunals, and is a matter for domestic politics to resolve.
More than ever, I am of the view that the stated intention of the Tories and Reform to quit the ECHR is an unwelcome diversion, once again externalising domestic problems. Working on the presumption that Reform will form the next government, even as a partner in coalition, it will open up a can of constitutional worms, especially pertaining to Northern Ireland, when ultimately the problem is a wholly dysfunctional justice system and an institutionally corrupted Home Office.
The trap here is that any new administration will end up absorbed by constitutional wrangling and diplomatic rows, when it could be getting on with more pressing concerns, potentially even hobbling its own authority as it runs out of steam, and once again landing us with a lame duck government that fails to deliver on its promises.