A political trick

But who’s the trickster?

The government “will legislate to limit the application of article 8 of the European convention on human rights, which covers the right to a family life,” Shabana Mahmood told MPs on Monday. “This will mean that we can deport and remove more illegal migrants,” the new home secretary added, “and we will pursue international reform, too.”

It’s not the first time that the government has promised UK legislation on this issue. Will it work? We should reserve judgment until we see what Mahmood is proposing and can assess whether it chimes with the views of other Council of Europe members.

But the Conservatives have already given us their opinion. This was Chris Philp, the shadow home secretary, responding to Mahmood on Monday:

She said in her answer a second ago that she wants to see the ECHR reformed, but her own government’s attorney general Lord Hermer said just four days ago that ECHR reform is a “political trick”.

Perhaps she and the attorney general should get themselves on the same page. Given that the attorney general says that reform is not possible, does she not agree that more fundamental changes are needed?

There was a similar comment about Mahmood from Robert Jenrick, the shadow justice secretary, on Tuesday:

The previous justice secretary pretended that we could reform the ECHR, but the attorney general, Lord Hermer, has stated that that position is a “political trick”.

Is it a trick that this justice secretary intends to play on the British public?

A trick?

Did the attorney general really describe reform of the human rights convention as a political trick?

Lord Hermer KC speaking to the House of Lords constitution committee

Appearing before the House of Lords constitution committee on 10 September, Hermer was asked whether he agreed with Mahmood when she appeared to suggest seeking an amendment to the convention itself.

This is part of his reply:

I read very carefully what the then lord chancellor and now home secretary said and let me make it plain that I absolutely agree with her every word. Nothing is off the table and no stone will be unturned.

We will absolutely work with partners across the Council of Europe to check that the operation of the convention is fit for the modern age. In so far as we think it is not, we will work for the benefit of the British people to effect those changes.

In the short term, even if we are able to identify things that need to change, that will not lead to us leaving the European convention for all the reasons I have given. We also need to be plain that it would be a political trick to pretend that, in the short term, any of those changes would make a difference to what we currently face and are determined to address in practical ways. To amend the convention itself requires unanimous agreement across 46 states.

To seek a declaration, for example to enshrine some new principles, is of course something we will look at — you would expect us to do that. To get a sense of this, the last time we had a protocol impact upon the interpretation was the Brighton declaration, which was all about subsidiarity. It took about nine years between declaration and implementation.

Now, we are absolutely sure that there is a raft of measures that we will implement, at speed, to deal with the problems we currently face. We will be robust, at speed, to be effective. I talked about some of those measures, not least article 8 domestically.

We will do whatever is needed in terms of working on the Council of Europe to make sure that the convention is working in the way we would want, but it would be wrong of me to infer that that is something we will see results on in weeks or months. But I make it plain that no stone will be unturned and we will take nothing off the table if we consider it to be in the interests of the British people.

Comment

Hermer’s unscripted comments are not particularly clear. But we can see that he is raising three different options:

• domestic legislation amending the Human Rights Act 1998, which parliament would be asked to approve

• an amendment to the European Convention on Human Rights, which would require the agreement of all 46 Council of Europe members

• a policy declaration by member states, which could lead in due course to an amendment to the convention — perhaps by adding what’s called a protocol

As I read his comments, Hermer is saying that anyone pretending that article 8 could be amended quickly — “in the short term” — would be playing a trick on the public. Reforming the convention is certainly a possibility that the UK wants to work towards but it is not going solve the current problem of illegal migration.

Instead, Hermer appears to be arguing that we should reform our domestic law and see what impact that has on how our own courts interpret article 8. And that’s just what Mahmood is saying too.

This may or may not be a wise course of action. If domestic law begins to diverge from human rights law, the UK will begin losing article 8 cases at the human rights court. That’s a risk that ministers appear willing to take.

But it seems to me that if anyone is playing political tricks with the public it’s the Conservative front bench.

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