ECHR: Lord Hermer’s defense called dishonest and desperate

When the attorney-general, Lord Hermer, argues that staying signed up to the European Convention on Human Rights is essential for controlling our borders, he’s tapping into a bitter national debate — one that many voters, MPs and campaigners see very differently. Claims that the Convention helps stop illegal Channel crossings or secures cross-border cooperation with France and Germany are increasingly challenged by politicians and legal experts who say the ECHR often hinders straightforward immigration enforcement.

The row is not just legal nitpicking. It exposes a wider clash over who should make the big decisions in Britain: international judges and human-rights jurists, or elected politicians and the public. That clash now sits at the heart of debates about deportations, border security and national sovereignty.

Where the ECHR actually intersects with UK border policy

Proponents of remaining under the ECHR argue membership helps coordinate actions with European partners and gives Britain leverage in persuading other states to crack down on trafficking. Opponents reply that the practical effect is the opposite: the Convention has become a frequent legal shield for people facing removal, forcing courts to block deportations on human-rights grounds.

Recent years have produced a steady stream of cases that illustrate the tension:

• Individuals with violent or extremist records who cannot be returned because their destination country might mistreat them or lacks sufficient safeguards.
• Criminals whose family circumstances in the UK — for example, children and relationships — are argued to make deportation a disproportionate interference with private life.
• People facing real threats to life or safety in their country of origin, where Article 3 protections (no torture or inhuman treatment) become decisive.

In practice, human-rights protections frequently trump straightforward removal orders, producing frustration among authorities seeking to send people back to countries perceived as unsafe or unwilling to cooperate.

Common legal reasons courts cite to block deportation

Judges interpreting the Convention rely on a set of familiar legal justifications when they refuse removals. Understanding these helps explain why the ECHR is often seen as an obstacle to robust border control.

• Risk of ill-treatment: If a deportee faces a real risk of torture, death or severe mistreatment, Article 3 can bar removal.
• Family and private life: Long residence, children in the UK or close family ties can trigger Article 8 protections, making deportation disproportionate.
• Procedural fairness: Failures in the removal process, such as inadequate asylum assessments or unsafe transfer arrangements, can lead courts to intervene.

These legal pathways are widely used and give judges room to interpret individual circumstances, which critics say results in inconsistency and undermines the clarity of immigration rules.

Why some politicians defend the Convention despite the pushback

There are political and ideological reasons why senior figures, including some inside the Labour Party, remain committed to the ECHR. For them, the Convention is not only a human-rights instrument but also a bulwark against the full re-assertion of national decision-making in areas they view as requiring international oversight.

Key factors include:

• A preference for transnational institutions as a check on domestic policy swings — which helps protect minority rights and prevents sudden policy reversals.
• An intellectual and administrative class that trusts expert-led, tribunal-based governance over populist solutions.
• The desire to tie Britain’s hands to international norms to safeguard certain social policies against majoritarian pressures.

For critics, that amounts to defending a legal firewall designed to limit democratic control over sensitive questions like immigration. Supporters see it as protecting vulnerable people and upholding international obligations.

Practical cooperation with European partners: myth versus reality

Claims that the ECHR is indispensable to bilateral deals with France or to prompting criminalization of people-smuggling in other countries are overstated, according to many analysts. Diplomatic agreements, policing cooperation and mutual legal assistance are usually negotiated independently of the human-rights convention.

For example, legislation in other European countries to clamp down on trafficking often arises from domestic political pressures and bilateral bargaining, not directly from ECHR obligations. Likewise, hotspot policing on French beaches and joint operations at sea have complex political foundations and cannot be reduced to the UK’s membership status in Strasbourg.

Where cooperation has worked — and where it hasn’t

• Successes: Information-sharing, targeted patrols and joint operations have occasionally disrupted smuggling rings and reduced crossings in short-term windows.
• Failings: Long-term deterrence has been weak. Smugglers adapt, and legal rulings that prevent straightforward deportations blunt the impact of operational gains.

Public opinion, parties and the political risk of human-rights prioritization

Many voters are growing impatient with what they see as an elite fixation on abstract human-rights principles at the expense of everyday concerns like jobs, public order and border security. That sentiment is reflected in party politics: figures on the right and some moderate critics on the center-left argue that prioritizing international human-rights obligations can conflict with popular mandates to control migration.

Electoral consequences are real. By-elections and future general contests will test whether a platform that defends the ECHR at all costs resonates with a public that increasingly favors tougher immigration controls. Politicians who insist the convention must remain untouchable risk alienating voters who want clearer, more enforceable border rules.

Alternatives and legal reform proposals under discussion

Debate about the ECHR has produced a range of reform ideas, from seeking reinterpretation of Convention provisions to outright withdrawal. Policy options frequently proposed include:

1. Negotiate protocols or declarations to clarify how Article 3 and Article 8 should apply in deportation cases.
2. Strengthen domestic statutes to reduce the scope for ECHR-based judicial intervention.
3. Pursue changes through political channels, including diplomatic pressure on Strasbourg or legislative safeguards limiting judicial review in immigration matters.

Each approach carries legal risks and political costs. Some would preserve the Convention’s framework while attempting to limit its interference with national immigration policy; others would mark a dramatic shift toward reclaiming full sovereignty over deportation decisions.

Andrew Tettenborn is a professor of commercial law and a former Cambridge admissions officer.

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Robert Johnson

Robert Johnson is a dedicated columnist focusing on political and social debates. With twelve years in editorial writing, he provides nuanced, well‑argued perspectives. His commentaries invite you to form your own views and engage in critical issues.