In less than two months, the Council of Europe is set to consider the adoption of a Political Declaration intended at “rebalancing” the European Convention on Human Rights (ECHR) in immigration contexts. This language of altering an existing balance is deliberately slippery, but for the states advancing this agenda it clearly involves removing or weakening rights protections for migrants that have developed within ECHR jurisprudence. This is the thrust of the latest Outcome Document in preparation for the Conference taking place in Moldova.

These developments have attracted vigorous critique on their own terms. This post, however, considers their implications for the connected rights commitments made under the Belfast/Good Friday Agreement of 1998 (the 1998 Agreement). After decades of ethno-nationalist conflict in Northern Ireland, this Agreement marked a commitment to a shared society. This goal did not rely merely on goodwill and hopeful language, but was grounded upon litigable rights. The Agreement requires, as a baseline, that the UK and Ireland incorporate the ECHR into domestic law and to allow its rights to be enforceable in domestic courts. But it extends beyond this, with Theresa May, as Prime Minister during the Brexit negotiations, acknowledging that “the rights it enshrines” extend into EU law and ultimately acknowledging that the position of the UK Government at that juncture was that ‘the Belfast Agreement will be protected in full.’

The expansive rights commitments within this peace agreement made sense in a time of deepening international human rights protections, but are more difficult to reconcile with attempts to diminish such international protections. The states involved in the 1998 Agreement have not made a convincing case for how their advocacy of a new political declaration aligns with these commitments. If the 1998 Agreement’s rights commitments start from, and extend beyond, the ECHR rights, this cannot be reconciled with efforts to water down those rights and shackle the interpretive role of the Strasbourg Court.

Attempting to Backtrack on Rights Commitments

The 1998 Agreement was supposed to be grounded upon a foundation of human rights. After decades of ethno-nationalist conflict involving flagrant rights abuses, this was a shared commitment to a different sort of society. Nor was this, as some accounts of the Agreement would suggest, just about the two major communities in Northern Ireland. The rights chapter of the Agreement explicitly provides for the rights of “everyone in the community”. This commitment was underpinned by incorporating the ECHR into UK domestic law (including in Northern Ireland) under the Human Rights Act 1998. The states party to the 1998 Agreement, Ireland and the UK, signed up to this commitment as an Annex to their inter-state treaty element of the text.

In recent years, that foundation has come under threat. Rights protections for unpopular minorities frequently attract the ire of populist politicians, but now it is the UK Labour Party, which has long prided itself on being amongst the architects of the 1998 Agreement, that poses the most immediate threat. The UK’s Labour Government is actively promoting a new Political Declaration on the effect of the ECHR with the express aim of restricting the effect of these rights in immigration cases. As new drafting documents reveal the extent of these proposals, the question of how this accords with the UK’s 1998 Agreement commitments needs to be asked.

As commitments to rights in UK public discourse have wavered, politicians have offered a range of easy solutions to complex governance problems. For David Cameron, UK Prime Minister between 2010 and 2016, the answer was the restriction of the Human Rights Act 1998, the instrument that made the ECHR rights litigable in the UK’s domestic courts. Neither he nor his Conservative successors managed to achieve this in fourteen years in office.

More recently, both Kemi Badenoch and Nigel Farage, both even more committed to simplistic solutions and the more drastic the better, have committed their parties (the Conservative Party and Reform UK) to withdrawing the UK from the ECHR should they take office. Any taint of pan-European arrangements suffices. What none of these proposals has ever successfully confronted, however, is how they accord with the commitments that the UK made to the people of Northern Ireland in 1998.

Successive Conservative Party plans to reform the Human Rights Act sought to sidestep the question; replacement human rights arrangements would be sufficiently similar to the existing arrangements to uphold the Good Friday Agreement obligations. Which always begged the question, if nothing was going to change, what was the point of the reform? With no clear answer to this question, and mired in the debates over and then realities of Brexit, the Human Rights Act continued to operate as enacted throughout the Conservative-led Governments of 2010 to 2024.

As for Farage, he shrugs that his plans might take a little longer to put into place in Northern Ireland because of the 1998 Agreement, without ever explaining what that means in the context of UK-wide commitments regarding the Council of Europe. Kemi Badenoch’s plans depend on the sleight-of-hand, within the 2025 Wolfson Report, that some rights protections can be provided in Northern Ireland law without troubling the rest of the UK, even though this undoubtedly hollows out the level of international oversight provided by the European Court.

The New Approach: Hollowing Out Rights

None of these plans have stood up to scrutiny. They all attempt to backtrack on the position for Northern Ireland, which the UK committed to in 1998 on an open-ended basis. The current UK Labour Government’s push for a new Political Declaration poses a different, but no less concerning, threat. Under pressure to be seen to be addressing immigration concerns, at a time when these reflect global instability more than any rights-based “pull factors”, Shabana Mahmood’s Home Office is actively seeking, alongside other ECHR states, to redraw how the Convention operates. If the boundaries of the ECHR itself shrink, can this be accommodated within commitments under the 1998 Agreement, which used the ECHR to define a minimum baseline of rights protections?

Keir Starmer’s Government is pushing forward this process within the Council of Europe’s Steering Committee on Human Rights, a process which will culminate in Moldova’s capital Chișinău where a High Level Conference meets in May to adopt a new political declaration on the ECHR’s application. The drafts emerging from this process indicate that many states are pushing to curtail the application of rights. The key questions which remain outstanding are how far the state parties to the Convention are willing to go in “rebalancing” rights protections and whether the implications of these changes will stop at migration cases.

The path to Chișinău is paved with suggestions of a multi-tiered rights order, in which rights protections will in future operate in a watered-down manner in immigration contexts. The European Court is enjoined to avoid “unnecessary constraints on decisions to extradite, or to expel foreign nationals”. The most recent Outcome Document from the pre-Conference Steering Committee, moreover, selectively quotes the Court’s decisions to assert that the severity threshold for inhuman and degrading treatment should be lower in cases involving a state’s own actions than where there is a “real risk” of such treatment if someone is expelled to a non-ECHR country (underplaying more recent case law).

The immediate goal of this shift is to make it easier for states signed up to the Convention to expel foreign nationals by requiring them to demonstrate more severe ill treatment than is currently the case. Sometimes this is almost farcical, with the drafters repeatedly acknowledging that the new political declaration could recognize the restrictive nature of the Court’s existing case law around such claims; “the quality of accessible healthcare in the receiving State should only give rise to a real risk of treatment contrary to Article 3 in very exceptional circumstances described in the Court’s case-law”. In short, the Court’s approach is already pitched to meet the minimum requirements of other international measures, such as Article 33 of the 1951 Refugee Convention and Article 3 of the UN Convention Against Torture. The desired “wiggle room” that states are pursuing is largely illusory.

The singling out of migrants under this process is, in itself, deeply problematic. It strikes at the core of the universality of rights protections, and of itself undermines the promise of the 1998 Agreement. As the Northern Ireland courts have confirmed, the assertion of the rights of “everyone in the community” very much includes the rights of immigrants. But when it comes to posturing over immigration, the Irish Government is as eager as its London counterparts to advance the new Political Declaration.

The UK and Irish governments, as co-guarantors of the 1998 Agreement, have not explained how their enthusiastic advocacy of a process that is designed to hollow out the rights of immigrants in Northern Ireland reflects these commitments. Florid assertions of the significance of the “letter and spirit” of the 1998 Agreement are in short supply. Instead, ministers have adopted more euphemistic language about the Moldova process to deflect concerns around its impact; ‘We are working with international partners to modernise the application of the ECHR … entirely consistent with our obligations under the GFA [the 1998 Agreement]”.

These proposals, moreover, are unlikely to stay confined to immigration contexts, but will instead potentially compromise the general operation of the Convention. The Court is repeatedly urged in the drafting documents to recognise the particular authority of states in relation to security determinations. Given the extensive jurisprudence attesting to the limits to the European Court’s supervisory role where security is at issue, the drafting marks out an effort to underline the primacy of national authorities over such questions which spills over from immigration into the ECHR’s general workings.

Conclusion: Promises Betrayed

During the conflict in Northern Ireland, the oversight of the European Court was essential to asserting minimal rights protections in security contexts. From challenges to inhuman and degrading treatment, to prolonged pre-charge detention, to uses of lethal force by the authorities, it was only this level of international oversight, in avowedly security contexts, that provided a meaningful constraint on UK Government policy. In the words of Northern Ireland’s Lady Chief Justice, “[i]t is against this backdrop of human rights development that the Good Friday Agreement was brought into being”.

The 1998 Agreement was supposed to embed these rights in domestic law, meaning that claimants would not always have to pursue cases to the European Court to see their rights vindicated. Under these proposals, in key cases where security is at issue, rights will have much less purchase in domestic tribunals or before the European Court. A spill over from immigration cases is likely to result, with some states hoping for a more pliant approach from Strasbourg across security-related cases. But even if the Political Declaration is confined to immigration cases, it remains an affront to the concept of rights being enjoyed by “everyone in the community”. This was not the future that the 1998 Agreement promised.