European Convention on Human Rights: 75th Anniversary

Lord Murray of Blidworth Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Murray of Blidworth (Con)]

My Lords, it is a privilege to serve on the Joint Committee on Human Rights under the chairmanship of the noble Lord, Lord Alton, whose timely debate this is and whose contribution we heard earlier. As a barrister practising in part in the field of public law and human rights, and as a member of the Joint Committee on Human Rights, and like all noble Lords who have spoken, I place the highest value on human rights. However, human rights are not one and the same thing as the European Convention on Human Rights as it is today.

In March 2021, the former professor of law and legal philosophy at the University of Oxford, John Finnis, and I wrote a paper for Policy Exchange entitled Immigration, Strasbourg, and Judicial Overreach. In his foreword to that paper, the noble and learned Lord, Lord Hoffmann, noted that:

“There is only one way to determine the limits of the commitment undertaken by the states which subscribed to European Convention on Human Rights and that is by reading the instrument and construing it against the background which would have been known or assumed by the parties at the time. Indeed, this is the only way to understand the meaning of any utterance whatever. But the European Court of Human Rights have felt free to give the Convention a meaning which could not possibly have been intended by its subscribers on the ground that it is a ‘living instrument’ which it is entitled—indeed, required—to update in accordance with what it considers to be the spirit of the times”.


In the paper, we examine the transformation of the convention in respect of immigration policy, the position in 1951 being that the signatory states

“have no obligation to let in refugees … have no legal or treaty obligation to accept refugees at all … and have no absolute obligation to continue to provide asylum for refugees who are a danger to the community”.

They were matters for the states themselves.

Forty years later, the European Court of Human Rights set out a line of judgments that has circumvented those principles. It has done so along two routes. The first gives the ECHR’s absolute prohibition of torture and inhuman treatment, found at Article 3, a radically expansive interpretation, which is neither morally nor legally warranted. The second circumvention has been via Article 8—the right to a private and family life—which has been expanded to override immigration controls. This is something which those who drafted, signed and ratified the convention would certainly have rejected. These misinterpretations facilitate and incentivise unlawful migration, and hamper European states in justly handling the issue. Elastic, expansive and inauthentic treaty interpretations such as these are contributing substantially to the real risk that the rule of law in European states will be overstrained.

Behind this judicial transformation of refugee and migration law lies the doctrine, judicially invented in 1975, that the ECHR is a living instrument. This doctrine enabled the Strasburg judges to reform social arrangements, even very fundamental ones, either without debate and approval from democratic legislatures or with a retrospective approval, strongly encouraged by the court’s assertions that these reports are already required by law and by international agreements and obligations which this country has long accepted as binding. In either form, this is an unconstitutional purpose. It is unfitting for the ECHR. The convention was intended not to provide an engine to social reform, still less for top-down reforms, but to block regression from the level of respect for rights that was standard in 1950 in the founder states—distinguishing them from the defeated fascist states and communist tyrannies imposed on Europe in the late 1940s.

The calls for withdrawal that we have heard in relation to the convention come about as a result of these issues. I submit that this House will expect to see the European Convention on Human Rights reformed, or face a clamour which may be unavoidable.