Twenty years later, and under a new prime minister, Labour now appears to want to make good on Blair’s promise to ‘change the rules’ as far as human rights are concerned, and to do so for much the same reasons and in much the same way.

Thus in November 2025, in Restoring Order and Control: A Statement on the Government’s Asylum and Returns Policy, the government insisted that the increase in the movement of people across the globe necessitated tightening up the UK’s asylum regime, which it claimed was ‘a significant pull factor to people smuggling’. According to Home Secretary Shabana Mahmood, this country’s asylum system ‘was designed for an earlier and simpler era, and has not been updated to reflect our changing times’. Consequently the statement sets out what it calls ‘the most sweeping asylum reforms in modern times’. Specifically with regard to the ECHR, the government announced that it intended to restrict the manner in which the courts apply Article 8, which states that ‘everyone has the right to respect for his private and family life’. New legislation will be introduced to make it clear that in the case of someone claiming a family connection in order to be allowed to remain in the UK, that connection is limited to members of their immediate family only. Far from coincidentally, this right has for years been the subject of misreporting, distortion and caricature in the press.

Meanwhile in the case of Article 3, which, as noted earlier, protects people from torture and inhuman or degrading treatment, the government is concerned that:

The interpretation of ‘inhuman or degrading treatment’ has been expanded over time.  As a consequence, we see examples of foreign national offenders who are being allowed to stay in the UK on the basis of an Article 3 protection claim, despite committing serious criminal offences in the UK. Others have blocked a deportation because their healthcare needs, including mental healthcare, cannot be fully met in their country of origin.

This, the statement argues, limits the ability of national governments ‘to make sovereign decisions on migration in their own democracies’ or, in other words, makes it unnecessarily difficult to deport foreign nationals who have committed serious criminal offences in the UK. Consequently the government is ‘working with partners to reform the application of the ECHR’s prohibition on inhuman or degrading treatment’, presumably in order to make the definitions of what constitutes such treatment less stringent.

On 9 December 2025, the day before a meeting of the Council of Europe to discuss reform of the ECHR, with particular regard to the issue of migration, Keir Starmer and the Danish prime minister Mette Frederiksen published a joint statement in which they committed to ‘surging removals of those with no right to be here and making settlement reliant on integration and contribution, while pushing for coordinated international action too’. They also expressed their determination to ‘maintain control over who comes and who stays, and do it on our terms’.

The meeting was held partly in response to an initiative launched on 22 May 2025 by Italy and Denmark and also signed by the leaders of Austria, Czechia, Latvia, Belgium, Estonia and Lithuania. This argued that there was a need to examine how the ECtHR had developed its interpretation of the Convention, and, in particular, whether it had extended its scope too far beyond what its founders had originally intended, thus shifting the balance between the rights of  new arrivals and those of settled populations.

Following this initiative it was expected that the meeting would discuss Article 8, but at the insistence of Belgium and the UK, the latter represented by foreign secretary David Lammy and attorney general Richard Hermer, Article 3 was placed on the agenda as well. On the day of the meeting, which, somewhat ironically, was also Human Rights Day, 27 of the 46 Council of Europe members, including the UK, Hungary and Italy, presented it with an unofficial statement urging a new framework for the ECHR.  France, Spain and Germany were among those who declined to sign.

The statement argued that failure to respond to the challenges posed to society by new patterns of migration risks ‘undermining the very fundamental rights and freedoms that the Convention protects, thereby eroding confidence in the whole Convention system’. It also stated that ‘a right balance has to be found between the migrants’ individual rights and interests and the weighty public interests of defending freedom and security in our societies’. In order to remedy these problems, Article 8 should be ‘adjusted’ in relation to criminals facing possible deportation so that more weight is put on the nature and seriousness of the offence committed and less on the criminals’  social, cultural and family ties with the host country, thus making it easier to expel foreign nationals convicted of serious crimes.

Meanwhile the scope of Article 3 should be narrowed to include only the most extreme forms of inhuman and degrading treatment and to exclude matters such as prison conditions or the state of healthcare in a country to which a criminal is to be deported. The statement also argues that ‘a state party should not be prevented from entering into cooperation with third countries regarding asylum and return procedures, once the human rights of irregular migrants are preserved’, thus opening the way to Rwanda-style deals with such countries.

Additionally the statement emphasised ‘the principle of subsidiarity, by which the primary responsibility for ensuring the rights and freedoms enshrined in the Convention and its Protocols lies with the States Parties to the Convention’, which enjoy ‘a margin of appreciation in exercising such responsibility’. It also endorsed the doctrine that the Convention is a ‘living instrument’, enabling it to take ‘appropriate account of the developments, both factual and legal, that have evolved significantly in recent decades and were unforeseen at the time the Convention was drafted’.

As we have seen in the case of the Policy Exchange report, those who have habitually criticised the Convention for over-expanding its remit have frequently taken aim at precisely this doctrine, but what this intervention demonstrates extremely clearly is that it can also be invoked to justify the Convention’s curtailment.

Selling the pass

Defenders of human rights were aghast at these developments. For example, Natasha Tsangarides of  Freedom from Torture warned that  ‘chipping away at these vital protections risks a global domino effect, giving the green light to repressive regimes to justify their own abuses’. And as Veronika Fikfak, a judge ad hoc at the European Court of Human Rights and a member of the Permanent Court of Arbitration, has pointed out specifically with regard to Article 3, this is one of the Convention’s few absolute rights and so allows no margin of appreciation for individual states. Instructing the Court to change its understanding of ‘inhuman and degrading’ treatment would strike at the very heart of the protections offered by the Convention and come perilously close to attacking – or at least challenging – the Court’s independence.

Meanwhile Steve Valdez-Symons, refugee and migrant rights director at Amnesty International UK, accused Starmer and Frederiksen of ‘reshaping the moral ground our societies stand on’ and of staging ‘a retreat into a politics that regards some lives as less worthy than others’. In particular, he warned against a strategy of trying to appease the anti-ECHR forces by looking tough on human rights, because once it is conceded that rights are a ‘problem’ that hinder governments from ‘taking back control’ over the nation’s borders, then the pass has already been sold. And instead of blaming the asylum backlog on an excess of rights, the government should concentrate on clearing the backlog as quickly as possible and addressing the mismanagement and politicking that brought it about in the first place.

A similar line was taken by Michael O’Flaherty, the Council of Europe’s commissioner for human rights, who argued that yielding ground on human rights would ultimately serve the interests of the anti-rights populists by weakening the rule of law and risk creating a ‘hierarchy of people’, a notion he described as ‘very, very worrying’, particularly given the Convention’s roots in reaction to the genocidal horrors of WWII. He also pushed back against the oft-repeated assertion that the ECtHR infringes the sovereignty of nation states, pointing out that individuals and countries are permitted to apply to the Strasbourg court only once they have exhausted all their options in the domestic courts.

For this very reason – and quite contrary to the impression given by the anti-ECHR press in Britain – the number of times that Britain has found itself before the ECtHR in cases involving asylum claims was ‘tiny’. In fact, a recent report by the Bonavero Institute of Human Rights has revealed that, since 1980, the Court has found on only thirteen occasions that a UK government decision to extradite or deport someone would violate the Convention, with only four of these concerning the right to family life. In respect of the UK’s immigration rules generally, the Court has ruled against the UK a mere three times in the past 45 years in cases related to discrimination.

It is also worth pointing out that although various European countries are critical of the ECHR, only in the UK is total withdrawal on the political agenda. But what is particularly worrying here is that the UK, unlike many of its neighbours, lacks a written constitution, which means that there are precious few obstacles to the widening of executive power and the undermining of the judiciary. Given that the courts are already under sustained attack by the anti-human rights forces, this suggests very strongly that weakening human rights protections could have disastrous consequences for justice and democracy in this country. Furthermore, as Fikfak and others have argued, in order to have much chance of producing the required results as far as immigration is concerned, withdrawing from the Convention would almost certainly have to be accompanied by leaving other international treaties such as the Refugee Convention and the Convention Against Torture, increasing still further the UK’s international isolation in the wake of Brexit.

The return of Jack Straw

But, of course, the government’s stance does have its defenders, one of whom is none other than Jack Straw, consideration of whose views on this matter returns us to the matters raised at the start of this article, namely Labour’s attitude to the ECHR and ECtHr as expressed at the time of their birth, and more recent objections to the idea of the Convention as a ‘living instrument’.

In an article in the Independent, 10 December 2025, headlined ‘Why I Believe the ECHR and its Tone-Deaf Strasbourg Court Need Reining In’, Straw argued that, in his view, the problem with the Convention lies in the way in which the Court applies it across the Council of Europe’s 46 member states. In particular he took aim at what he called the Court’s ‘expansive, activist interpretation of the Convention’ which advances ‘the idea – found nowhere in the Convention’s text – that it is a “living instrument” which “must be interpreted in the light of present-day conditions”’. In precisely the same vein as Lord Sumption, he argued that such an interpretation had allowed the Court to interfere in countries’ domestic affairs and thereby to ‘sideline democratic will’  to a degree never intended by the Convention’s original drafters. In his view, ‘strong supporters of Strasbourg sometimes appear to inhabit an alternative historical universe, assuming only their court stands between liberty and tyranny’.

Absolutely inevitably, the neuralgic issue of prisoners’ voting rights, which involved a nine-year battle with the Court, in which Straw had been a highly active participant, is preyed in aid here, Straw denouncing it as  ‘the worst example of Strasbourg overreach’  and stating that in the case which started the battle (Hirst v UK [No 2]) ‘the judgment was factually inaccurate, its reasoning weak, and it ignored the fact that such issues lay far from those that inspired the Convention. Public and Parliament alike would never tolerate such gratuitous interference in domestic politics’.

However, Straw’s main concern here is with immigration and asylum, subjects on which he argues ‘the Court has been most tone-deaf’. Accordingly he welcomed the above-mentioned government interventions in these areas. But he also criticised the outgoing British judge at the Court, Tim Eicke QC, who had noted that of 29 recent UK cases concerning the removal of foreign nationals, sixteen were found to involve no breach of the law, and so could proceed. But, Straw demanded indignantly: ‘What of the remaining thirteen? Why, given the rigorous process within the UK judicial system, should Strasbourg intervene at all? Its willingness to entertain applications creates delays and disrupts the entire system’.

In this respect, Straw took particular issue with section 2 of the HRA, which states that ‘a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights’. According to Straw, this ‘did not require UK courts to “follow” Strasbourg; had Parliament intended that, it would have said so. Yet in the 2000s, the UK Supreme Court decided that “take account” effectively meant “mirror” Strasbourg’. Consequently, Straw argued, ‘section 2 should be amended to state UK courts “may, or may not, take account of” Strasbourg. Other consequential changes would be needed to decouple British law from Strasbourg’s influence’.

What these changes are is not specified, but it is hard to see what would be the point of Britain’s membership of the ECHR if Straw’s reforms were put into practice. And, indeed, the point of the Court at all if a significant number of members of the Council of Europe followed suit. But Straw insists that because of its ‘excesses’ the Court’s legitimacy has become increasingly fragile, and that ‘the survival of the Council of Europe and its Court will depend primarily on the Court itself. If it continues to overreach, it will secure its own demise’. But this sounds suspiciously like the American officer in the Vietnam war who allegedly said of the city of Ben Tre that it became necessary to destroy it in order to save it. Furthermore, by amplifying many of the criticisms of human rights voiced by Reform and the Tories, who want to see the complete end of the HRA, ECHR and ECtHR, Straw, Starmer and Mahmood have simply given them wider circulation and greater credence and legitimacy.

As Conor Gearty argued in his last piece published before his untimely death, neither British judges nor politicians can ‘undo what the ECHR and its application in domestic law have already achieved. This is the result of the interaction between the European convention, the Strasbourg case law, the Human Rights Act and the case law underpinning it’. Currently, if the government wants to throw foreigners out of the country irrespective of their right to life, their right not to be tortured or their right to family life, then this can be stopped by interim order of either the Strasbourg or national courts. But, he continues:

To get rid of such obstacles, it would be necessary to repeal the Human Rights Act, and also – to ensure that you won’t be liable at the international level – to leave the Council of Europe, joining Belarus and Russia in their denial of the jurisdiction of the European Court of Human Rights. You would then need to pass special laws allowing people to be sent to near certain death, after being treated with a harshness that is explicitly inhuman or degrading. That truly would be taking back control.

Full circle

Thus the wheel comes full circle, with Straw’s position on human rights sounding in many respects remarkably similar to those of the cautious British drafters of the Convention and of its critics in Attlee’s cabinet. Its critique of the Convention and the Court also has distinct similarities to that of Policy Exchange, particularly in its hostility towards the idea of the Convention as a ‘living instrument’, which developed as a result of judicial activism by the Court. And both would presumably argue that had this doctrine not diverted the Convention from its relatively narrow original path, neither it nor the Court would be facing their current difficulties.

However, this is to ignore the fact that the world has changed very considerably since the Convention was originally drafted – vide Mahmood’s remark quoted above about ‘an earlier and simpler era’. Opponents of the Convention would doubtless argue that these changes entail that it is no longer fit for purpose, and in particular make it unnecessarily difficult for nation states to insulate themselves from the global movement of peoples which is such a defining feature of the contemporary world. And it is surely no coincidence that the kinds of criticisms of the ECHR and HRA made by the likes of Blair, Blunkett, Reid and Straw in the earlier part of this century have returned with such renewed force and vigour at a time when hostility to migrants in the UK in sections of the population and the media has never been so overt.

By contrast, supporters of the Convention as a living instrument would retort that the Court must take these global changes into account in its deliberations and decisions and, in particular, that the worsening plight of refugees and displaced people makes protection of their human rights more crucial than ever.  But there is an even more serious objection to the kind of reforms proposed by Starmer, Mahmood and Straw, which is that with the international rules-based  order crumbling before our very eyes it is surely highly undesirable to undermine yet one more of the institutions which still underpin it.

Julian Petley is the Honorary and Emeritus Professor of Journalism, Brunel University London