Starmer’s Strasbourg showdown with the ECHR is his last chance to see off Farage

David Lammy going to Strasbourg reminds me of David Cameron going to Brussels to try to get a deal that would allow Britain to stay in the EU. Angela Merkel should have given him something that he could sell to his voters as a genuine change, but she stuck to her purist EU principles – and as a result, weakened the EU by losing the UK.

The justice secretary ought to be saying privately to his fellow leaders at today’s Council of Europe summit that if they don’t make real changes to the way the European Court of Human Rights (ECHR) works, other people will.

By “other people”, he will mean Nigel Farage and Jordan Bardella, the French presidential candidate of Marine Le Pen’s National Rally. And by “changes”, he will mean countries such as Britain and France withdrawing from the European Convention on Human Rights altogether.

So far, Lammy and Keir Starmer have hinted at this argument rather than being explicit about it. The prime minister, in a joint newspaper article today with Mette Frederiksen, the social democratic prime minister of Denmark, says: “Europe has faced big tests before and we have overcome them by acting together. Now we must do so again. Otherwise, the forces that seek to divide us will grow stronger.”

I assume that he is blunter in private. He and Lammy need to tell their fellow European leaders that they must not make the Brexit mistake again. They must not allow a rigid adherence to purist dogma to destroy the underlying principles that they care about.

Starmer and Frederiksen are right to talk about the “modernisation of the interpretation” of the European Convention: they want to change how the convention is applied in order to retain popular support for it. And Alain Berset, the secretary general of the Council of Europe, which oversees the convention and its court, was wrong to respond to the demand for change so defensively.

It is fine for defenders of human rights, such as Keir Starmer, KC and author of a textbook on the subject, and his friend Richard Hermer, KC and attorney general, to point out that changing the way the convention is interpreted by British courts will not have much effect on the small boats.

They can remind people that the notorious chicken nuggets case – in which an Albanian criminal tried to stay in the UK by arguing that his child didn’t like Albanian food – was actually rejected by the Upper Tribunal.

But there are too many other cases in which defendants have successfully argued against deportation using such a broad definition of either family life or the risk of torture that public opinion has been left behind.

That public opinion will go somewhere else, as Starmer has warned. Just to drive home his point, Farage met Bardella yesterday and they got on like a European house on fire. The next presidential election in France is not due until April 2027, but Bardella is already leading in the opinion polls – in both the first and hypothetical second rounds of the French run-off system.

The ECHR is not a big issue for the French anti-immigration party in the way that it is here. Except that Marine Le Pen, National Rally’s leader and the party’s previous presidential candidate, lost her appeal to the court in July against her five-year ban from French politics for misusing EU funds as a member of the European parliament to pay party staff.

She might not like the ECHR for personal reasons, but Bardella has no sympathy for the court on principle and an alliance between him and Farage could do far more damage to the court than any centrist reforms.

No doubt Starmer and Lammy will be accused, again, by rebellious Labour MPs, Lib Dems and Greens, of trying to “out-Farage Farage” with their support for a Europe-wide push to align the ECHR better with public opinion.

This is the Cat Eccles fallacy, named after the Labour MP who objected to Shabana Mahmood, the home secretary, reforming the rules on asylum by saying “it just feels that they are trying to just be seen to be doing something just to appease the electorate”.

If Labour does not give the electorate what it wants, there is another party that will.