Something extraordinary has just happened. In March, Yvette Cooper, the home secretary, said that she was reviewing the way the European Convention on Human Rights was being interpreted by the courts.
Three months later, no one will defend the Convention as it is.
Two more MPs joined the stampede to change it today: Jake Richards and Dan Tomlinson, two ambitious Labour backbenchers, have a joint article in The Timescalling for “reform” of the Convention.
It became clear that this was not just a matter of tactical positioning in British politics when nine EU leaders, led by the prime ministers of Italy and Denmark, published an open letter on 22 May to launch an “open-minded conversation” about the “interpretation” of the Convention.
They said: “We have seen, for example, cases concerning the expulsion of criminal foreign nationals where the interpretation of the Convention has resulted in the protection of the wrong people and posed too many limitations on the states’ ability to decide whom to expel from their territories.”
A week later, Richard Hermer, the UK attorney general, delivered a lecture that attracted attention for suggesting that Kemi Badenoch’s wish to “disengage” from the European Court of Human Rights (ECHR) was like legal arguments made in Nazi Germany to “put aside” international law. He had to apologise for that “clumsy” analogy, which meant that hardly anyone noticed something else he said in the lecture, namely that Britain must be ready to “reform” international agreements such as the Convention so that they retain “democratic legitimacy”.
A few days later, Alain Berset, the secretary general of the Council of Europe – the body that oversees the Convention and its court, and that (as every Brexit pedant knows) is separate from the European Union – said: “We need adaptation. We need discussion about the rules that we want to have, and there is no taboo.”
In just a few weeks, the debate has moved from “how the Convention is interpreted” to “rewriting the Convention itself”. Something is happening.
It is almost as if European leaders have learnt from their failure to give David Cameron reforms that would have enabled him to win the referendum and keep Britain in the EU. They have realised that they need to change the European Convention on Human Rights in order to save it.
The transformation of the politics of the issue in the UK was confirmed last week, when Ed Davey said that he wouldn’t be opposed to rewriting the Convention. “If you could do it collectively, working with the court, with European colleagues, yes, one could look at that,” he said.
That is Ed Davey, leader of the Liberal Democrats, who fought a general election on a promise to cancel Brexit; the party that most venerates European institutions and international law. What is going on?
Nigel Farage claims that he has changed the terms of the debate: that the liberal establishment is panicking because of his campaign against the ECHR. First, he forced Kemi Badenoch to harden her line, inherited from Rishi Sunak, of being prepared to repudiate the demands of the court if necessary; now the government is trying to hold back the tide by reviewing the way the Convention is interpreted, or even amending it.
This is not the whole story. I don’t think Giorgia Meloni and Mette Frederiksen were prompted to publish their open letter by Reform’s success in British opinion polls. They were responding to a genuine problem that has frustrated elected leaders for a long time. I remember Tony Blair being as irritated as his first-class temperament would allow at the Chahal decision of 1996 that made it hard for him to deport various criminals and terrorists.
But the way that the Convention – especially Article 8, which concerns the right to family life – has been interpreted, both by the ECHR and by national courts, has become more of a problem in recent years.
In Britain, The Telegraph has given the appearance of campaigning against human rights law by simply reporting a series of rulings by immigration tribunals. (Perhaps the most eye-catching case overseen by the ECHR in recent months was that of the Palestinian family who were given leave to come to the UK after having applied under a scheme for Ukrainians.)
This is not just a problem of how British courts interpret the Convention, as the letter from nine EU leaders attests. The way that this issue plays out on the continent could, however, have an effect on the next British election. As Richards and Tomlinson point out, if “progressives” don’t “shape the change”, then the “populist right” will. If the Convention is redrafted in the next few years, it might take some of the wind out of Farage’s sails – while also complicating Badenoch’s plan to join Farage in the rejectionist camp.
What an unexpected plot twist: that Keir Starmer, the barrister who edited a text book on European law in 1998, should end up leading a government that rewrites the Convention.
