ECHR unbalanced, say PMs
But Council of Europe leader warns nine members not to politicise court
The 46-nation Council of Europe has rebuffed an attempt by the leaders of nine member states who believe the European Court of Human Rights has made it too difficult for them to deal with what they describe as irregular migration.
Open letter
In an open letter launched last Thursday by the Danish prime minister Mette Frederiksen and her Italian counterpart Giorgia Meloni, the European heads of government question “whether the court, in some cases, has extended the scope of the [human rights] convention too far as compared with the original intentions behind the convention, thus shifting the balance between the interests which should be protected”.
The letter, also signed by the leaders of Austria, Belgium, the Czech Republic, Estonia, Latvia, Lithuania and Poland, continues:
We believe that the development in the court’s interpretation has, in some cases, limited our ability to make political decisions in our own democracies. And thereby affected how we as leaders can protect our democratic societies and our populations against the challenges facing us in the world today.
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.
The nine countries — all EU members — argue that they should have:
“more room nationally” to decide on when to expel criminal foreign
nationals.
more freedom to decide on how their authorities can keep track of foreign criminals who cannot be deported even though they have committed crimes and made others feel unsafe.
the ability to counter hostile states that are trying to use
their values and rights against the nine countries, “for example by instrumentalising migrants at our borders”.
They conclude:
In all modesty, we believe that we are strongly aligned with the majority of the citizens of Europe in our approach. We want to use our democratic mandate to launch a new and open-minded conversation about the interpretation of the European Convention on Human Rights.
We have to restore the right balance. And our countries will cooperate to further this ambition.
Response
The Council of Europe rushed out a defence of the human rights court on Saturday.
“Upholding the independence and impartiality of the court is our bedrock,” said the council’s secretary general, Alain Berset.
He continued:
Debate is healthy, but politicising the court is not.
In a society governed by the rule of law, no judiciary should face political pressure. Institutions that protect fundamental rights cannot bend to political cycles. If they do, we risk eroding the very stability they were built to ensure.
The court must not be weaponised — neither against governments, nor by them.
Berset reminded the nine heads of government that, as far as they were concerned, the European Court of Human Rights was not an “external” body:
It is the legal arm of the Council of Europe — created by our member states, established by sovereign choice and bound by a convention that all 46 members have freely signed and ratified.
It exists to protect the rights and values they committed to defend…
As we face today’s complex challenges, our task is not to weaken the convention, but to keep it strong and relevant — to ensure that liberty and security, justice and responsibility, are held in balance.
Comment
Although the nine political leaders made no mention of specific provisions in their open letter, it’s thought they were referring in particular to article 8 of the human rights convention, the right to respect for family life. Criminals facing deportation often argue that being separated from their families would breach this right, as interpreted by the Strasbourg court in past rulings.
Members of the UK government have also expressed concern about the interpretation of article 8. Lord Hermer KC, the attorney general, told parliament’s joint committee on human rights at the beginning of last month that
article 8 does not prevent a very robust, a very quick, a very efficient but fair asylum and immigration process. So we need to just check that there's the right calibration on casework decisions. We may also need to check… that government is being robust in appealing decisions that we don’t like, that there’s a litigation strategy that meets that aim.
We may also want to check immigration rules, statutes and policies to check that the article 8 calibration is right and we will also want to work with our colleagues across the Council of Europe to check that there is a common understanding as to the breadth of article 8.
Two weeks ago, the home secretary Yvette Cooper published a policy document that also seemed to reflect some of the nine EU leaders’ concerns. Although Home Office officials did not seem to understand that the Human Rights Act 1998 does not include an “article 8” — except in a schedule setting out the convention — the white paper’s message was tolerably clear:
The government promised legislation “to clarify article 8 rules and set out how they should apply in different immigration routes so that fewer cases are treated as ‘exceptional’.”
It’s not known whether Sir Keir Starmer was invited to sign the open letter. No doubt some — if not most — of the 46 signatories to the human rights convention believe that the correct way to proceed would involve an amendment to its wording. But that would take years.
And despite the secretary general’s attempt to protect the human rights judges from political lobbying, they may well prove sensitive to the political realities facing the states from which they are drawn.
The three candidates for the UK’s seat on the European Court of Human Rights were interviewed last week by the Parliamentary Assembly of the Council of Europe, which elects the court’s judges. They are Hugh Mercer KC, Deok Joe Rhee KC and Sam Wordsworth KC. All produced impressive CVs.
As an ex pat yank I don't feel that I have the right to express a view or even hold one, except to say that British criminals used to be exported en masse to Australia so I don't see why criminals who have arrived here from elsewhere should be allowed to stay here for any reason. Families can be deported to preserve the right to family life. Adult children would presumably be allowed to stay assuming they are not also criminals.
Troubled by all this, although I recognise that I shall need to educate myself more thoroughly over these complex issues. I fret since I fear I detect whether with this Court with international reach or within our U.K. domestic Courts I sense a trend where the executive is ever more inclined to plonk its tanks on the judiciary’s lawn. What price then should this inclination be acquiesced in for the separation of the powers. For example here in the U.K. efforts to legislate/dumb down the judicial and much needed discretion over “exceptional circumstances” need to be scrutinised with rigour.