The UK’s Justice Secretary has promised domestic legislation and called for wider ECHR reform because, she says, the application of human rights is now ‘out of step with common sense’. What does this tell us about the government’s broader commitment to human rights in the face of political pressure and shifting public opinion?
In a speech at the Council of Europe on 18 June 2025, the Justice Secretary and Lord Chancellor, Shabana Mahmood, outlined the UK government’s plans to ‘reform’ domestic human rights law while making clear that she believes that changes to the European Convention on Human Rights (ECHR) also need to be considered. The core concerns driving the UK government’s thinking are apparent from the following passage of Mahmood’s speech:
[W]hen the application of rights begins to feel out of step with common sense – when it conflicts with fairness or disrupts legitimate government action – trust begins to erode. We have seen this in the UK in two particularly sensitive areas: immigration and criminal justice. If a foreign national commits a serious crime, they should expect to be removed from the country. But we see cases where individuals invoke the right to family life – even after neglecting or harming those very family ties. Or take prison discipline. Being in custody is a punishment. It means some privileges are lost. But dangerous prisoners have been invoking Article 8 [of the ECHR, which protects the right to private and family life] to try to block prison staff from putting them in separation centres to manage the risk they pose. It is not right that dangerous prisoners’ rights are given priority over others’ safety and security. That is not what the Convention was ever intended to protect.
‘Common sense’
In a recent post, I drew attention to concerns about the way in which some on the political right are seeking to frame the debate about human rights and the constitution more generally — in particular by placing judicial decision-making and ‘common sense’ in opposition to one another, and, more generally, by suggesting that it is somehow improper for the courts to prevent the government from pursuing the policies and directions is wishes to pursue. While Mahmood’s rhetoric stops short of some of the more egregious views that have recently been aired on both sides of the Atlantic, it is nevertheless striking that she too leverages the notion of ‘common sense’, situating it in tension with decisions made by domestic and European courts in contexts such as immigration and criminal justice, and characterising such judgments as ‘disruptions’ to ‘legitimate government action’. Of course, judgments can sometimes offend common sense, and courts can overstep the mark, trespassing on the proper territory of elected governments, in which case criticism is entirely appropriate. It is nevertheless at least worth noting that Mahmood strikes a different tone from that which was evident only a few months ago in a lecture by the Attorney General on international law and the rule of law.
Equally noteworthy is the following passage from Mahmood’s speech:
[A]cross the continent, trust is being tested. Rules are increasingly being broken and undermined. And the values of democracy, human rights and the rule of law – once widely assumed – now face distortion, doubt, even hostility. In this context, the recent letter from nine European leaders [arguing for reform of the ECHR to give states more latitude to deport foreign offenders, among other things] demonstrates a desire for open conversation about the future of the Convention.
The underlying assumption here appears to be that if public opinion turns against human rights, it is human rights that need to give way — ‘hostility’ to human rights and the rule of law serving as the trigger for an ‘open conversation’ about changing the ECHR, presumably in a way that would assuage public concern. Yet such an analysis, infused as it is with realpolitik, is hard to square with the notion of human rights as constructs whose universality entails that they can be enforced by unpopular minorities, such as immigrant offenders and those serving sentences of imprisonment, just as they can by the so-called law-abiding majority.
None of that is to suggest that there is no scope for legitimate debate about whether the existing legal framework strikes an appropriate balance between the rights of such groups and competing legitimate interests. There is, for instance, undoubtedly scope for different views about whether the jurisprudence of the European Court of Human Rights on Article 8 affords States sufficient latitude to limit the right to respect for private and family life in the service of legitimate competing policy aims, including those that might be served by deporting foreign offenders. More generally, as Lord Reed, the President of the UK Supreme Court, recently reminded us, we should be careful to avoid kneejerk reactions to reform proposals that wrongly imply existing arrangements to be beyond improvement. That sensible advice should not, however, obscure the fact that the Justice Secretary’s framing of matters is potentially troubling, given the implicit premise that the security of human rights is, at least to some extent, ultimately a function of shifting public opinion.
Domestic legislation
What, then, is Mahmood’s proposed solution to the problem she perceives? In the immediate term, the government’s preferred way forward lies in the enactment of domestic legislation. Mahmood explained that:
[W]e are clarifying how Convention rights – particularly Article 8 – operate in relation to our immigration rules. The right to family life is fundamental. But it has too often been used in ways that frustrate deportation, even where there are serious concerns about credibility, fairness, and risk to the public.
A press release issued by the Ministry of Justice provides a little more information:
Legislation brought forward by the Home Office will strengthen the public interest test to make it clear that Parliament needs to be able to control the country’s borders and make decisions over who comes to, and stays in the UK, striking the right balance between individual family rights and the wider public interest. It will clarify Article 8 rules and set out how they should apply in different immigration routes so that fewer cases are treated as “exceptional”.
At least in principle, there is nothing particularly novel in this idea. Indeed, other attempts to direct judicial decision-making in this context have been made, for example via the Immigration Act 2014, about which I wrote over ten years ago in a blogpost that demonstrates, if nothing else, that the concerns identified by Mahmood are certainly not new ones. It remains to be seen what form the new legislation will take, but unless change occurs at the European level — whether through the amendment of the ECHR itself or a softening of its interpretation by the Court of Human Rights — the room for domestic manoeuvre is limited to the extent of States’ margin of appreciation (that is, their limited latitude to make decisions about how to balance rights against competing legitimate interests).
ECHR reform
More far-reaching change would therefore need to occur at the European level. The letter from nine European leaders referred to by Mahmood — and subjected to incisive critiques by Harriet Ní Chinnéide and Eva Sevrin and by Peter Hilpold — demonstrates that the UK is not alone in entertaining the concerns it has aired. And Mahmood made it clear that she regards domestic legislation as only a partial solution to the perceived problem, saying that ‘reform must be a shared political endeavour amongst us as member States – to preserve our Convention by renewing its moral and democratic foundation’.
It is, however, far from clear how far the UK or other European countries now advocating reform wish to go, bearing in mind the interlocking nature of many of the issues. For instance, Mahmood’s speech focussed on the right to respect for private and family life under Article 8 ECHR, but deportation, including of foreign offenders, can also be resisted under Article 3, whose prohibition on torture and degrading treatment extends to preventing States from deporting people to countries in which they would face a risk risk of such treatment. (Precisely that issue underpinned the Supreme Court’s judgment in 2023 when it ruled unlawful the then government’s plans to deport asylum-seekers to Rwanda on account of the risks that they would face there.) This prompts Hilpold to wonder whether the nine leaders who were signatories to the recent letter would be prepared to countenance the unravelling of such protections:
Should the prohibition of torture and inhuman or degrading treatment no longer apply to (alleged) criminals? Such a move would plainly place the ECHR system behind both the standards of the UN Human Rights system and those of comparable national and regional systems. Although the letter does not explicitly propose such outcomes, it is difficult to see how they could be avoided, despite the vague language of the letter.
In the wake of the leaders’ letter, Alain Berset, the Secretary-General of the Council of Europe under whose auspices the ECHR exists, initially took a robust stance, arguing that ‘[a]s we face today’s complex challenges, our task is not to weaken the Convention, but to keep it strong and relevant’. However, he later said that he accepts the ECHR ‘must adapt’ in the light of the concerns raised by the nine leaders.
If and when discussions proceed at the European level, the choice that will need to be made will be a difficult and potentially era-defining one — particularly if the outcome signals that human rights are to respected only when it is convenient to do so, such that the rights of (for example) immigrants fall to be diluted or removed when the scale of immigration makes upholding such rights politically inexpedient. That does not imply that no reform in this area can be countenanced consistently with a commitment to the universality of fundamental human rights or the rule of law. But it does serve to underline that the forthcoming UK legislation and any wider proposals at the European level will deserve the closest scrutiny.
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