ECHR: is Europe about to break with convention?

European leaders have agreed to look at how the European Convention on Human Rights is applied, in a way that takes into account the challenges posed by unauthorised migration.

Alain Berset, secretary general of the Council of Europe, said Europe’s leaders had taken an “important first step forward together” to agree a political declaration on migration and the ECHR, and support a new recommendation to deter smuggling of migrants “with full respect for human rights”.

Keir Starmer had earlier called on European leaders to modernise the interpretation of the ECHR. The “current asylum framework was created for another era” and should “evolve to reflect the challenges of the 21st century”, he said in a joint article with Danish PM Mette Frederiksen in The Guardian.

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What did the commentators say?

“Human rights campaigners, Labour peers and some MPs” had condemned the government for calling for changes, “arguing they could open the door to countries abandoning some of the world’s most vulnerable people”, said Pippa Crerar and Rajeev Syal in The Guardian. The PM, they said, “should not be diluting protections that pander to the right”.

“Closing our borders to refugees is undoubtedly a crime. But worse than that, it is a mistake,” Jonathan Portes, a professor of economics and public policy at King’s College London, told Strategic Europe. The combination of “dubious deals, pushbacks at sea, and draconian deportation policies may look like success” but “every analysis tells us that Europe’s ageing population and shrinking workforce mean we need new workers” to “help generate the economic dynamism we so desperately lack”.

But there is growing consensus across Europe that something needs to be done. Both critics and supporters of the ECHR, which came into force in 1953, acknowledge that it is “woefully outdated” and “does not reflect today’s reality of people-smuggling gangs and the weaponisation of migrants by rogue states”, said James Rothwell, Joe Barnes and James Crisp in The Telegraph.

“While there is no suggestion that EU leaders will scrap the ECHR”, as some parties on the right, including Reform UK and, latterly, the Conservatives “dream of doing”, a growing number of member states have called “for it to be ‘reinterpreted’ to address current migration challenges”.

What next?

Berset told reporters that the “living instrument” is possible to adapt, and work will begin next year.

The key parts of the ECHR that have been identified as in need of an update are Article 8, the right to family life, and Article 3, the right not to be subjected to torture or inhumane treatment. Both are often cited – some would say abusively – in court by asylum-seekers looking to overturn their deportation orders. And restrictions on the application of Article 8 are crucial to the government’s radical asylum reforms, set out by Shabana Mahmood last month.

There has been some outcry at moves to tighten up interpretation of these articles but, “to put it bluntly”, Europe would not be plunged “into a dark age of injustice”, said Daniel Thym, a professor of European law at Germany’s University of Konstanz, on Verfassungsblog.

It is a sign of how high Starmer sees the stakes on this issue that he sent both Justice Secretary David Lammy and Attorney General Richard Hermer to Strasbourg today to make the case for updating the convention. Starmer’s two closest allies have “one task in mind”, said Andrew McDonald on Politico’s London Playbook: “securing reforms to the ECHR to save his Labour government and the 75-year-old treaty from those on the right who want to ditch both entirely. No pressure!”