European Convention on Human Rights: 75th Anniversary

Lord Carter of Haslemere Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Carter of Haslemere (CB)]

My Lords, I too extend my congratulations to the noble Lord, Lord Alton, for his truly magnificent opening.

I declare an interest: I was a government lawyer for 34 years, and the ECHR often presented legal obstacles for the Government of the day, who I was advising. I understand, therefore, why some would like to withdraw from the ECHR.

One of the reasons often given for withdrawal is around Article 3, which, as interpreted by Strasbourg, prevents the UK sending failed asylum seekers, and others, back to their countries of origin where there are grounds for believing there is a risk that they will be ill-treated, however compelling the public interest reasons for removing them. This is the non-refoulement principle. I do not see how withdrawing from the ECHR would be the answer.

Politically, it would cause difficulties for the Belfast agreement, which assumes continued ECHR membership, and, as we have heard, it would risk ending criminal justice co-operation with the EU. Legally, in addition to many other international treaties that replicate the effect of Article 3, we are bound by customary international law arising from the “constant and uniform practice” of states, including the United Kingdom, complying with the non-refoulement principle, at least where the risk of severe ill-treatment is concerned. Leaving the ECHR to try to get around Article 3 would raise questions about our future compliance with customary international law.

There is no doubt that the Strasbourg court has used the living instrument doctrine in ways with which some contracting states may now disagree. A good example of that is the line of case law beginning with Al-Skeini, which has been referred to, on the extraterritorial effect of the convention. However, the answer to any perceived undesirable effects of the living instrument doctrine is not to leave the convention but to reform it, by bringing together contracting states to instigate reform, as was done recently with Protocol 15 on subsidiarity.

For example, where a specific piece of international law governs an issue, then perhaps the more general ECHR either should not apply or the Strasbourg court should be required to take account of it—which is a recognised principle of international law. This could be the case in respect of the Geneva conventions on armed conflict, the Paris Agreement on climate change and possibly even the refugee convention, where, unlike under Article 3 as interpreted by Strasbourg, narrow exceptions on grounds of security can apply in certain circumstances.

In addition, we must ensure our rich human rights heritage is preserved for future generations by a programme of civic and constitutional education on human rights and the balance to be struck between such rights and individual responsibilities, as recommended by Sir Peter Gross’s independent review of the Human Rights Act in 2021.

In conclusion, as we look at the increasing number of human rights abuses taking place around the world, which are totally blind to the rule of law, the scales are now weighted strongly in favour of continued membership of the ECHR, while seeking any reforms which will bring the convention more in line with what the contracting states may seek now in 2025.