ECHR: the wheels of reform are starting to turn

According to The Times, British ministers have won the backing of more than a dozen countries to reform the European Convention of Human Rights as governments across the continent search for ways to curb illegal migration.

More than 16 countries are understood to support UK moves to change the way courts interpret the European Convention on Human Rights (ECHR), which has been blamed for frustrating thousands of asylum deportation cases. The proposals would reduce the courts’ power to prevent asylum seekers from being deported pending hearings, which can sometimes take months or years to be heard.

Governments also want greater freedom to deport people even if such a move is claimed to have an impact on migrants’ right to a family life.

The changes are likely to require amendments to the ECHR to give individual countries more power to regulate their borders for reasons such as economic wellbeing and national security, even if that potentially infringes on the rights of individuals.

This is expected to build on changes in 2021 to the ECHR, known as the “margin of appreciation”, which made explicit for the first time that protecting human rights under the convention was the primary responsibility for individual states. It also gave them greater freedom in how they interpreted the treaty.

Ministers hope the changes will stop some of the more egregious examples of asylum seekers using the ECHR to avoid deportation.

…

Sixteen countries attended a meeting in Copenhagen this month to discuss how the changes could be implemented. Under the rules, any changes would require the unanimous support of signatories, which ministers believe is achievable.

Nick Thomas-Symonds, the European relations minister, told The Times: “The prime minister and I went to Copenhagen with a mission: to modernise how the ECHR is interpreted — not to abandon it. To work with partners, not posture against them. We have a coalition of European countries now backing Britain’s approach.”

In a way, it’s good that the Conservative Party and Reform have committed to leaving the ECHR in that it does put the “international community” on notice that it’s reform or die for the ECHR. It never hurts to have leverage. Labour can say, in all sincerity, that they won’t be in power forever, and if the ECHR cannot be reformed then Britain will call time on it.

If the UK initiative is successful it may take a little wind out of Reform’s sails - but it may also give Reform a much needed get-out clause. There’s a reason politicians keep threatening to leave the ECHR then changing their minds. It’s a fine idea in theory, but less so in practice.

The ECHR reform agenda is not without its risks, though. If Labour has bought the line that there’s nothing much that can be done until the ECHR is reformed, then the deportation problems will persist until it’s reformed. An administration so hopelessly wedded to international law is bound by its own dogma. Moreover, even if Starmer is successful, he still bumps into the reality that the ECHR is not the whole of the problem and that he is still bound by the 67 Protocol of the Refugee Convention.

Either way, it can’t have escaped Starmer’s attention that if the boats are not somehow stopped, then Labour is set for possibly their worst defeat of all time. Now that the Green Party is surging and Your Party is finding its feet, it’s clear that Labour has lost the whole of the left and appeasement of Islamism has done nothing to secure the Moslem bloc vote. Starmer’s only recourse is to win back some traction with working class voters.

If in 2029 he can say that he has succeeded where the Tories have failed, and has proven Labour can achieve the impossible (reforming an international convention) then the party may be able to stay in the game even if they can’t win. The one ace in the hole Labour has is that ECHR exit is not a popular policy. The majority of Brits oppose it - and unless the numbers change, even Reform might drop it as an idea.

This is certainly my hope anyway. The more I look at this mess, the less appealing the idea is. As The Restorationist puts it,

“The constitutional web that has developed around human rights protection creates fundamental obstacles to straightforward withdrawal from the European Convention on Human Rights. These obstacles arise not from technical legal impediments but from the deep structural integration of human rights standards into the constitutional system itself. Each potential approach to withdrawal reveals cascading complications which demonstrate why the apparently simple step of treaty denunciation would trigger constitutional reorganisation of unprecedented complexity”.

The Restorationist, however, makes a different conclusion to mine. The key point of disagreement, it would seem, is in their conclusion when they say “then the practical difficulties of withdrawal cannot constitute conclusive arguments against constitutional reform”.

”The withdrawal from the European Convention on Human Rights would represent an exercise in constitutional self-determination which affirms the democratic principle the British people possess ultimate authority over their constitutional arrangements. The practical challenges of implementing such withdrawal, however formidable, cannot override the democratic right to determine the constitutional principles which govern the British state.”

I happen to think the difficulties very much do constitute conclusive arguments against constitutional reform. ECHR withdrawal is only worth doing unless you’re willing to go the whole hog, and that necessarily means a withdrawal from the Windsor Framework, thereby collapsing the entire Brexit settlement, reopening the border issue, very probably leading to the termination of the TCA, at which point you have a constitutional crisis and a trade war on your hands. We really have better things to do.

Supposing I agreed with The Restorationist, there would need to be a comprehensive plan going further than the word of Lord Wolfson, taking into account the political realities, the potential fallout, and the order of execution. We would also need to see a pretty good mitigation strategy. Personally I do not think there’s the political capital or the competence to do it.

This is certainly the case among Tories who take it as read that because Lord Wolfson appears to give this endeavour the green light from a legal perspective then it’s all plain sailing. The Tories have given the matter very little thought and Reform have given it none at all. Richard Tice endorses Braverman’s fanciful report on the subject which calls for unilaterally amending multiparty agreements.

As such, if ECHR withdrawal is attempted, all I see in our future is a judicial logjam, a constitutional crisis and an unholy mess to sort out that will snub out any chance of the next administration being re-elected.

I expect there is more debate to come on this matter, but now we’ve had four headline reports on it, and the Tories have set out their stall, the issue will likely go dormant for a little while. I should take that as a cue to write about something else since I’ve bored you all senseless about it for months.

Meanwhile, As you’re probably aware, I’ve got a bit of legal bother going on at the moment. I have not launched an appeal for funds since I don’t expect this mess to see the inside of a courtroom. If it does, I may consider it. Since the storm has passed for now, I’ll be returning to work on the Manifesto Project. There’s a lot more work to do on it. Last week, I updated the ECHR policy, and this week I will be revisiting the police and immigration policies. If you would like to support this work, please consider a paid subscription or you can donate here.

I’m hugely grateful for donations of any size. I make enough out of this gig to not be a burden to my other half, but right now it’s not enough to keep doing this on a long term basis. I don’t even make minimum wage and would be better of working part time at the local Co-op, and I’d have a much easier life if I did. If you want me to stick around, I could use a little help right now. Thank you.