During his first summit as prime minister last July, Keir Starmer said his government would approach immigration enforcement “with a profound respect for international law”. That’s why, he added, “we will never withdraw from the European Convention on Human Rights.” In November, at the Interpol Conference in Glasgow, Starmer repeated the exact same words.

Now, after nine European leaders last month signed an open letter criticising the ECHR for extending “the scope of the Convention too far” in ways which have “limited our ability to make political decisions”, the picture is very different. The British government yesterday joined the chorus of ECHR critics, with Lord Chancellor Shabana Mahmood going to Strasbourg to warn of the dangers when “the application of rights begins to feel out of step with common sense”. She claimed that “when legal outcomes feel disconnected from public reasonableness, it is our job to respond.”

Mahmood’s comments in France were echoed in London by Labour MP Jake Richards, a former barrister, who told LBC: “people feel that this Convention [and] our international human rights obligations aren’t working for our national interests.” Both have identified Article 8 of the Convention, which protects the right to a private and family life, as the source of the problem.

Earlier this year, Home Secretary Yvette Cooper commissioned a review into how other European countries apply Article 8, which is sometimes used to appeal deportation proceedings. Last month, the Government’s Immigration White Paper asserted: “an overly high proportion of family-related immigration cases are now decided on the basis that they are ‘exceptional’ to the normal rules, rather than being in line with the rules set down by Parliament, and that undermines control and confidence.”

The Government’s current plan is to bring forward legislation to clarify how Article 8 rules may be interpreted by British courts. Hartlepool MP Jonathan Brash has defended this, saying: “it’s perfectly legitimate for a government to say Article 8 is not applying here; we are deporting a foreign criminal.”

But will this be enough? YouGov polling from this month showed that 51% support membership. Yet a 2023 survey suggested that if European human rights law were framed as making it hard to “promptly deport illegal immigrants”, then 54% supported replacing it with British law. As the public comes to see the ECHR as a block on controlling Britain’s borders, support for leaving will tick up. Clearly, the Starmer government recognises this potential.

However, there are two political risks in the Government’s current approach. One is the weakness that could come from calling for reforms but then not achieving them. The other is for the public to conclude that Labour MPs do not mean what they are saying.

One way to fuel public mistrust is to give unqualified praise of the ECHR as Starmer did last year. Mahmood made this mistake in her Strasbourg speech yesterday, reassuring her European audience that “this is not a critique of the Court of Human Rights,” and praising the Convention as “one of the great achievements of postwar politics”.

To be credible in their critique, Labour politicians should invoke the party’s long history of scepticism over the Convention. For example, Mahmood’s predecessor William Jowitt, who served as Lord Chancellor from 1945-51, expressed his revulsion: “Any student of our legal institutions…must recoil from this document with a feeling of horror.” Meanwhile, Cabinet minutes report that the Attlee government felt “it was intolerable that the code of common law and statute law which had been built up in this country over many years should be made subject to review by an international court.”

Indeed, as historians Marco Duranti and Sanjit Nagi have detailed, the ECHR was in large part an effort by European conservatives to stymie socialism. The key British advocates were Right-wingers who saw it as a way of constraining the apparent socialist excesses of the Attlee government. David Maxwell Fyfe, the Conservative MP who helped draft the Convention, regularly compared the Labour government’s policies, such as the union “closed shop”, to Nazism.

More recently, New Labour embraced the ECHR through the Human Rights Act 1998. Yet this took place within the context of the triumph of globalisation, the Thatcherite neoliberal consensus, and the death of socialist political economy within the Labour Party. Now, in the 21st century, it’s time for Starmer’s government to revive that Old Labour opposition to the supervision of democratically elected governments by international judges. This is good politics from Labour, limiting the impact of anti-ECHR rhetoric from the Conservatives and Reform UK. What’s more, it’s consistent with the party’s history.

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Richard Johnson is a Senior Lecturer in Politics at Queen Mary University of London.

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