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Can a lefty human rights lawyer be the one to take on Britain’s uneasy relationship with the European convention on human rights (ECHR)?
It is the most unlikely of causes for Keir Starmer. But there is a growing feeling in government that he should seize the initiative.
It will not just be a renegotiation in Europe, which ministers fear would echo the failed EU one attempted by David Cameron, but unilateral reform in the way the fundamental rights in the convention can be applied.
It is fraught with complication and risk and no one knows that better than the prime minister. Starmer is steeped in the language and history of the Strasbourg court. Allies say he can – and does – reel off the most important cases and precedents from memory.
The first time Starmer wrote for the Guardian was in 2009 on the fundamental importance of human rights, saying that to dismiss them was to “lose all notion of justice and surrender to the sometimes understandable but always inappropriate yearning solely for retribution”.
But it is from this position that those in government – and a growing number of Labour MPs – believe there is an opportunity to lance the boil of the far-right argument to leave the convention altogether.
“Under this government the question of whether to stay in the ECHR is settled, it’s not even a question,” one senior government minister said.
“But this is not the EU – it’s not about in or out – it’s about whether we can use our national sovereignty to address what is a legitimate concern from the public to how this law is being applied in order to preserve what are really fundamental human rights laws which we all believe in.”
The rightwing press have made a bogeyman of the ECHR – making wildly misleading accusations of it being responsible for allowing criminals to stay in Britain because their children don’t like foreign chicken nuggets.
It is the bete noire of Robert Jenrick, the shadow justice secretary, and leaving the ECHR was the platform for his Conservative leadership attempt. It looks almost certain to be adopted as a policy by Kemi Badenoch. Nigel Farage said it would be his first act to leave, if he were PM.
But a growing number of Labour MPs say that although much of the criticism of the ECHR is hyped-up nonsense that falls apart when details of the cases are revealed, some of the commentary is valid. Many are in Reform-facing seats and want the government to seize the issue and act decisively.
The two key aspects of the convention that have caused the most controversy are article 8, which includes privacy and right to family life; and article 3, freedom from torture and degrading treatment. The Home Office is undertaking reviews of both – and how courts apply them.
ITV’s investigation this week is an obvious illustration; two fugitives wanted for murder and child rape, one of whom has offended again in Britain, cannot be deported because of overcrowded conditions in Brazilian prisons.
In a joint article responding to the ITV investigation, two of the most vocal Labour MPs of the 2024 intake – Jake Richards and Dan Tomlinson – said the government needed to neutralise the calls from the Tories and Reform to leave the ECHR. To do that, it should “offer serious and practical changes to see off this threat and deliver for the British people”.
Many more MPs say they believe there are examples the world over of voters reacting violently against international law and treaties because of their perceived anti-democratic inflexibility, which they believe stops them getting the changes they vote for.
The way to stop this growing backlash happening in Britain, they say, is to show that change can happen without throwing away decades of long-fought-for human rights.
The attorney general, Richard Hermer, a veteran human rights lawyer like Starmer, whose legal career has made him a big target for the right, has hinted he is in agreement. His view will be essential to the path Starmer takes. “British leadership to strengthen and reform the international rules-based system is both the right thing to do and the only truly realistic choice,” he said in a recent speech.
Senior government figures say there may be a path for a bill that sets out the principles on how the ECHR can be applied going forward, shaped by modern circumstances.
But there is a strong feeling that seeking European-wide agreement to change the ECHR is a non-starter – it would take too long, be too tortuous, and give the impression the UK is going “cap in hand” to Strasbourg to ask for permission to change things.
It is true that nation states, including France, have begun to vary their interpretations of those laws, especially article 8. Some cabinet minsters believe that the change can come through guidance, especially to the first-tier immigration tribunal, about how to apply the law.
But MPs in favour of change would like to see the government seize the cause more robustly and publicly than that, which is why they favour legislation. “There have been too many occasions where the centre left haven’t seized a cause that could turn very ugly and found a way to respond to public concern in a way that is progressive,” one said.
The challenge is how to land that message of a third way, instead of the binary choice the populist right will present between leave or remain. That will feel queasily familiar to veterans of the Brexit years – Starmer again is among them.
