New laws around the ECHR would be no silver bullet

The home secretary Shabana Mahmood said on Monday that Labour would legislate to limit the power of the European Convention on Human Rights, so Britain can “remove more illegal migrants”.

So what? New laws would be no silver bullet, but MPs won’t let that stop the ECHR from dominating the party conference season. It has become a dividing line at Westminster as

• a test of ideological purity on the right;
• a way of demonstrating radicalism on the left; and
• a pressure point for Keir Starmer who wants to be tough on immigration but has spoken warmly about the convention.

A little history. Drafted in the aftermath of the second world war and signed in 1950, the ECHR protects fundamental rights including freedom from torture, free speech, liberty and family life.

Application. The Human Rights Act, which embeds the convention in UK law, has helped secure justice for the families of those killed in the Hillsborough disaster and upheld the rights of disabled people and care home residents during the pandemic.

Opposition. Despite these outcomes, the ECHR is held up by politicians across parties as an obstacle to tackling the small boats crisis and deporting foreign criminals. Reform’s Nigel Farage has promised to “get rid” of the convention if he takes power, while Kemi Badenoch is expected to announce her support for withdrawal at the Conservative party conference.

Chicken nugget debacle. One popular anecdote used to criticise the ECHR relates to an Albanian criminal who supposedly avoided deportation because his son disliked foreign chicken nuggets. This case has been cited by both Badenoch and Farage.

The truth. There was no such ruling that the foreign offender should be allowed to stay in Britain because of his child’s eating habits. A senior judge made clear an aversion to chicken nuggets should never be enough to prevent deportation.

Rumour mill. Other stories have done the rounds. Theresa May, when she was home secretary in 2011, wrongly suggested that an illegal immigrant could not be deported because of his “pet cat”. More recently there has been the Iranian “spared deportation so he can cut his son’s hair” and the Afghan who could not be extradited to Belgium “because of mosquitoes” in the prison.

In the margins. Starmer, a former human rights lawyer, has described the convention as a personal lodestar and made clear that Britain won’t join Russia and Belarus in being a non-signatory. But adjusting how the UK treats the ECHR is on the table.

Coming soon. Mahmood is expected to introduce legislation within weeks to clarify the interpretation of the convention in British courts, particularly the protections on “private and family life” covered by article 8 and regularly cited in asylum cases.

But don’t expect results. The data indicates that the ECHR is not a block on meaningful immigration policy, despite the outsized attention that it has received.

• 0.73 per cent: proportion of foreign national offenders who have successfully appealed against deportation from the UK on human rights grounds
• 3: how often the ECHR has ruled against the UK in cases relating to immigration rules
• 41: mentions of ECHR in the House of Commons this month

Resist temptation. Francesca Klug, a human rights expert, told The Observer that withdrawing from the ECHR “would have little bearing on stopping asylum seekers from coming over on small boats, but it would severely reduce cooperation with other European states”. The attorney general, Lord Hermer, has described the promise of amending the convention as a “political trick” that would require other signatories to get on board.

What’s more… Farage and Badenoch can attack the ECHR without bearing the potential consequences of withdrawing from the convention, trying to amend it or reframing Britain’s relationship. If Starmer takes any of these three paths, he could fall into a trap.