Lawyers have expressed concern that an agreement signed today on the interpretation of the European Convention on Human Rights could encourage governments to put pressure on courts. Foreign ministers of the 46 Council of Europe member states today agreed an updated interpretation of Articles 3 and 8 of the ECHR to make it easier to deport unsuccessful asylum seekers and foreign criminals. 

The non-binding declaration signed in Chisinau, Moldova, reminds governments of the 'margin of appreciation' which allows courts to take account of local sensitivities when interpreting the treaty. 

Attorney general Lord Hermer (Richard Hermer KC) said: 'The convention is 75 years old, but it has never been static – it has shown its ability to adapt and to respond to new challenges. That is why this country is proud to be part of a process to work with colleagues across the continent to modernise how the ECHR works, including how to protect our borders in the national interest, to ensure the convention endures for another 75 years and beyond.'

Portrait of Richard Hermer

Hermer: 'The convention [...] has never been static – it has shown its ability to adapt and to respond to new challenges'

Source: Michael Cross

However the Law Society added its voice to concerns that the agreement would weaken protection of rights. Society president Mark Evans described the convention as 'a vital part of protections we rely on every day.  However, we are concerned that today’s declaration will be used by national governments to put political pressure on courts and weaken the tools we use to challenge them,' he said.

'The ECHR already recognises national governments’ rights to control migration. In fact, evidence shows that it is very rare for national governments, and especially the UK, to lose human rights cases concerning migration.'

Dr Jean-Pierre Gauci, senior fellow in public international law at the British Institute of International and Comparative Law, said: 'The point of the declaration is to lean on the European Court of Human Rights and, indirectly, on domestic courts to interpret the convention in a way that states consider to be more aligned with their priorities. The specific political goal is to reduce human rights barriers to removing foreign nationals, even if there is a real risk of harm to them on return.

'There are questions about the propriety of this sort of political pressure being exerted on courts by states generally. From a human rights law perspective, what is most controversial is the attempt to reduce protection against ill-treatment for foreign nationals, because this undermines the cardinal principles of universality of human rights and equality before the law, and risks eroding in practice what has always been an absolute right.' 

Akiko Hart, director of Liberty, said: 'The Chisinau political declaration on the ECHR is a hugely significant moment. We are deeply concerned that changing how the ECHR is used by UK courts will open the door to a gradual weakening of human rights protections.'