We must listen to UK on migration, says Council of Europe boss
Britain’s concerns about the European Convention on Human Rights (ECHR) hampering its migration policy need to be taken seriously and “addressed”, the head of the body that oversees the treaty has told The Times.
Alain Berset, the secretary-general of the Council of Europe, said the human rights system had to adapt to the challenges which states face in handling mass immigration or it risked losing its legitimacy.
On Wednesday, Berset will meet with Sir Keir Starmer and David Lammy, the justice secretary, in London for talks on a controversial new interpretation of the ECHR.
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The plan is to draw up a “political declaration” that would prod both national courts and the European Court of Human Rights in Strasbourg, the ultimate guardian of the convention, to recognise countries’ “undeniable sovereign right” to control their borders and plot their own course in dealing with the “significant, complex challenges” posed by large-scale migration.
This could give states more leeway to deport foreigners convicted of serious crimes and encourage judges to take a more stringent approach to the rights to family life and freedom from “inhuman or degrading” treatment.
It would also seek to establish a sounder legal footing for Rwanda-style “return hubs” that process asylum applications outside Europe, and for states that are confronted with campaigns of “instrumentalised” migration, such as when Belarus pushed thousands of irregular migrants into Poland, Lithuania and Latvia.
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The details are still being negotiated, but they are understood to be “95 per cent” complete and likely to be finalised next month at a Council of Europe summit in Chisinau, the Moldovan capital. The text would not be legally binding but in the past similar political documents have had considerable influence over court rulings.
The initiative is intended to head off discontent in Britain and other European countries, including nine states that last year openly called for reform of the ECHR, under the aegis of Denmark and Italy.
In Britain, both Reform and the Conservatives have pledged to take the country out of the ECHR should they come to power, although fewer than one in three voters support this approach.
Starmer and his Labour government prefer to cleave to the convention but tweak the system from the inside.
Human rights groups have reacted to the Chisinau plan with dismay. Some legal scholars have characterised it as an “unprecedented regression” in migrants’ rights. Amnesty International warned against a “dangerous rollback” of protections.
However, Berset, who was once the president of Switzerland, said the European discussion around migration had been “comfortable” for too long, and it was time to embrace discomfort and thrash out differences in the open.
“Clearly it is a sensitive discussion,” he said. “That’s normal … the work is not easy. We are still struggling with different positions, different views … [but] I’m strongly convinced that the best way to take those discussions forward is to debate, to try and find a convergence together.”
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The Council of Europe was founded in 1949 as part of a collective western European effort to build a common structure of human rights and democratic norms after the Second World War, largely inspired by the vision of Winston Churchill.
One of its first acts was to establish the ECHR, which has formed the basis of much human rights legislation in Britain and the other 45 member states, and significantly shapes rulings in Britain’s national courts. Both institutions are separate from and wider than the European Union.
Berset said his organisation had to keep evolving to match the challenges of the present and could not afford to dismiss the serious political concerns that have emerged around migration in many European countries.
“You could sometimes get the impression that there is a Council of Europe somewhere deciding things for us — absolutely not,” he said. “We only exist because there was a desire to avoid repeating the destruction and suffering of the Second World War.
“We decided we would commit to work together, to collaborate, to try and find how to address different issues, to try and find some convergent elements. And this is exactly what is happening on the migration discussion.”
Berset warned that if Britain were to leave the ECHR and the Council of Europe, it would be giving up the chance to shape “core values, European values, human rights, the rule of law and democracy” at a time when many of these ideas are in flux and needed to be redefined and defended.
He added: “Let us address all the points where we have differences and let us find out what it means to address them, and how we can correct them.”
The Chisinau summit is also expected to be a turning point for the efforts to bring Russia to justice for its illegal war on Ukraine.
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The Council of Europe was one of only a handful of multilateral bodies to expel Moscow after the full-scale invasion in 2022 and has already fielded more than 140,000 requests from Ukrainian citizens and businesses seeking compensation from Russia through its register of damage.
Work is now advancing on a “special tribunal” in the Hague that would prosecute senior Russian leaders for crimes of aggression in planning and executing the war. They could be tried in absentia and penalties may include the confiscation of any assets held in Europe and a ban from European airspace.
Britain, France, Germany and several other countries have offered to help fund the tribunal, although it is expected to be at least another 18 months before it starts operating.
Another of Berset’s worries is that Europe’s burst of rearmament could ultimately lead to ultra-nationalist governments using their expanded armed forces to cow or attack their neighbours, as was the case for much of the continent’s history before 1945.
Some analysts have begun to warn that Germany poses a particular risk should its increasingly capable and lavishly funded military one day fall into the hands of the hard-right Alternative for Germany (AfD) party.
Berset declined to pick out any particular country but said Europe urgently needed to work on designing institutional constraints that would prevent a return to the violent conditions of the past.
“The risk that we are facing right now in this world is to think too much in the short term,” he said. “In the short term, rearmament is happening for very good reasons, and it is absolutely necessary that rearmament is now strongly discussed and developing strongly … in five or ten years we will have strong armed countries in a way we have not seen for decades.
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“But now, at the same time, we are talking about democratic backsliding and weakened institutions. Just imagine what it means in ten years or 15 years. What if one day, some extremist group suddenly takes power in a weakened democracy after manipulated elections? What would that mean for security in Europe? It’s potentially a very, very bad development.”
Berset recalled a bleak conversation on the subject with several European heads of government at a recent summit.
“I was asking, ‘If we have stronger and stronger armies and less protection from strong institutions, what will happen?’” he said. “And the answer came directly: they [European states] will use the weapons against each other.”