Jenrick is right – any attempt to reform the ECHR is ultimately doomed to fail

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days, at least in quarters sympathetic to Labour’s reform attempt, has echoed the idea that the Convention is somehow out of date, drawn up in a different era and unsuited to modern conditions.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.