ECHR ‘must evolve’

Justice secretary says trust erodes when rights deny common sense

The justice secretary’s call yesterday for reform of the European Convention on Human Rights will come as no surprise my subscribers.

As I reported on 30 May, Shabana Mahmood’s government colleague Lord Hermer KC insisted in a lecture the previous day that international law does not give unlimited powers to international courts. He said:

States agreeing to treaties some time ago did not give an open-ended licence for international rules to be ever more expansively interpreted or for institutions to adopt a position of blindness or indifference to public sentiment in their member states.

That, I should add, was in a section of his lecture for which the attorney general expressed no regrets.

On 26 May, I had reported a letter from the leaders of nine member states who believed that the European Court of Human Rights has made it too difficult for them to deal with what they describe as irregular migration.

Shabana Mahmood yesterday with Mattias Guyomar, president of the European Court of Human Rights

Mahmood referred to that letter yesterday in her speech to the Council of Europe’s committee of ministers, representing the 46 countries that uphold the human rights convention. Most of the committee’s meetings are attended only by ministers’ deputies — diplomats — but Mahmood’s personal appearance — described by officials as an “exchange of views” — was added to the agenda at a late stage.

The justice secretary is concerned about article 8 of the convention, which guarantees respect for an individual’s private and family life. Public confidence in the rule of law was fraying, she said, and trust in democracy would begin to erode when the application of rights started to feel out of step with common sense — when it conflicted with fairness or disrupted legitimate government action.

She continued:

We have seen this in the UK in two particularly sensitive areas: immigration and criminal justice.

If a foreign national commits a serious crime, they should expect to be removed from the country. But we see cases where individuals invoke the right to family life — even after neglecting or harming those very family ties.

Or take prison discipline. Being in custody is a punishment. It means some privileges are lost. But dangerous prisoners have been invoking article 8 to try to block prison staff from putting them in separation centres to manage the risk they pose.

It is not right that dangerous prisoners’ rights are given priority over others’ safety and security. That is not what the convention was ever intended to protect.

I’m told the justice secretary’s comments went down well with Italian diplomats at the meeting. That’s not surprising: their prime minister Giorgia Meloni led the nine countries that called for reform. Mahmood was then asked a series of questions about how and when there might be further discussions but apparently she had little to add.

Those who listened carefully to her remarks might have told her that these were issues for courts in the United Kingdom, not the judges in Strasbourg. And Mahmood appeared to accept that view. Immediately after listing her concerns, Mahmood said: “this is not a critique of the Court of Human Rights”.

That was borne out by her commitment to domestic legislation on article 8:

In the UK, we are restoring the balance we pledged at the birth of our convention: liberty with responsibility, individual rights with the public interest.

There must be consequences for breaking the rules. Which is why we are clarifying how convention rights — particularly article 8 — operate in relation to our immigration rules.

The right to family life is fundamental. But it has too often been used in ways that frustrate deportation, even where there are serious concerns about credibility, fairness, and risk to the public.

We’re bringing clarity back to the distinction between what the law protects and what policy permits. Prisoners claiming a right to socialise — under article 8 — is not just a legal stretch. It damages the public perception of human rights altogether.

These are the reforms we are pursuing at home. The question for all of us now is whether the convention system, as it stands, has the tools to resolve these tensions in a way that keeps the public with us.

It’s entirely within the power of parliament to amend the law in this way. Why, then, is Mahmood calling for amendments to the convention?

“The European Convention on Human Rights is one of the great achievements of post-war politics,” she said. “It has endured because it has evolved. Now, it must do so again.”

Since the Human Rights Act came into force across the UK almost 25 years ago, domestic law in the United Kingdom has kept pace with the human rights convention. Our courts are required to take judgments of the human rights court into account. Now, it seems, parliament will be asked to tell the courts how to interpret article 8. Legislation “will clarify article 8 rules and set out how they should apply in different immigration routes so that fewer cases are treated as exceptional”, the Ministry of Justice said a little vaguely.

If our courts take a different view of article 8 from the Strasbourg court, its judges might find the UK in breach of the convention. But I cannot imagine the human rights court finding that article 8 restricts segregation in prison.¹ Every prison sentence is an interference with a prisoner’s private and family life. Article 8 specifically permits interference with family life if this is “necessary in a democratic society… for the prevention of disorder or crime”.

So Mahmood’s intervention seems designed more for domestic consumption than as a serious attempt at reform. Sources in Strasbourg are concerned about what they see as political attempts to undermine the convention. They say the appropriate forum in which to challenge the way article 8 is being interpreted is in the human rights court itself, where states can seek to intervene on pending cases.²

Meanwhile Professor Mark Elliott has drawn attention to Mahmood’s suggestion that judicial decision-making is becoming out of step with “common sense”. The assumption behind her remarks and those of the nine European leaders “appears to be that if public opinion turns against human rights, it is human rights that need to give way”.

That, he says, hardly accords with the notion that human rights can be enforced for the benefit of unpopular minorities. “The justice secretary’s framing of matters is potentially troubling,” Elliott wrote last night, “given the implicit premise about the resilience or otherwise of human rights in the face of shifting public opinion”.

Update 1015: a reader has alerted me to a series of cases in which prisoners have been denied their rights under article 8. Although “separation centres” — officially, close supervision centres — are not unlawful as such, prison governors must comply with requirements for a prisoner’s detention in a centre to be lawful.

In R (Awale) v Justice Secretary, Mrs Justice Ellenbogen decided in September 2024 that the claimant’s detention in a close supervision centre at various times and his removal from association had violated his rights under article 8 and had therefore been unlawful. The legal framework for removing a prisoner from association lacked clarity and did not require prisoner’s involvement in the decision-making process to a degree sufficient to protect his interests, she said.

Ellenbogen was following R (Syed) v Justice Secretary, decided in 2017. In that case, the decision to place a prisoner in what was called a central managing challenging behaviour strategy unit and the restrictions imposed on him were cogently justified and proportionate. However, as the justice secretary accepted, the decision was not in accordance with law because of procedural errors, in particular the lack of an opportunity to comment on the transfer to the unit or the criteria for transfer.

Both prisoners were represented by Dan Squires KC.

In Shahid v Scottish Ministers, the UK Supreme Court held in 2015 that a prisoner had been segregated without valid authorisation under the prison rules for periods totalling 14 months, in breach of his rights under article 8.

In Maslák v. Slovakia (no. 2), the human rights court held in 2022 that a prisoner placed in a high security unit had been denied his rights under article 8. He had been excluded from the decision-making process and denied an effective way of challenging his placement.

• Hugh Mercer KC is now the clear favourite for election next Tuesday as the new UK judge at the human rights court. The committee that interviews candidates ahead of elections by the Parliamentary Assembly of the Council of Europe recommended him as the most qualified UK candidate “by a large majority”.

1. See update below: I should have said “prevents”.

2. On Tuesday, the parliamentary assembly of the Council of Europe may hold a debate on “attempts to undermine the European Convention on Human Rights and to attack the independence and impartiality of the European Court of Human Rights through political interference”.