ECHR Debate in British Politics

The Fault Line in British Politics: Could Departing from the ECHR Reshape the Nation?

A seismic shift is occurring in British political discourse, centring on the UK's membership of the European Convention on Human Rights (ECHR). Once a fringe topic, the issue of withdrawal has become a defining issue, fracturing party lines and forcing a national conversation about sovereignty, justice, and the country's place in the world. The debate, heavily charged by the intractable issue of migration, now stands as a crucial test for the nation's future direction.

At the core of this storm is Conservative leader Kemi Badenoch, who has unequivocally committed her party to exiting the convention if they secure victory at the next general election. This move represents a significant hardening of the Tory stance, escalating what was once internal party discontent into a flagship policy pledge aimed at voters disillusioned with the status quo. The implications of such a move are profound, touching everything from domestic law to international peace agreements.

The Conservative Gambit

Kemi Badenoch recently announced that a future Conservative government would facilitate the UK's departure from the European Convention on Human Rights. Speaking ahead of her party’s annual conference, she framed the decision as a necessary measure to safeguard the nation’s borders, its military veterans, and its citizens. This declaration followed a detailed legal analysis by Lord Wolfson, the shadow attorney general, which concluded that remaining within the ECHR framework fundamentally obstructs key Conservative policies.

The report identified significant constraints imposed by the convention on immigration control, the prosecution of veterans, and the prioritisation of British citizens for public services. Lord Wolfson’s advice solidified the view within the party leadership that withdrawal is the only viable path to regaining full national sovereignty. Badenoch’s firm stance indicates that support for departing from the ECHR has become a litmus test for Tory candidates, signalling a clear ideological shift to the right.

A Widening Political Divide

The Conservative promise to exit the ECHR has drawn sharp criticism from across the political spectrum. Sir Ed Davey, the Liberal Democrat leader, accused Kemi Badenoch of aligning with figures like Nigel Farage and Vladimir Putin, arguing that the policy would fail to resolve the small boats crisis or mend the UK's dysfunctional immigration framework. He positioned his party as a staunch defender of the UK’s human rights commitments and the rule of law.

Meanwhile, Sir Keir Starmer, the Prime Minister, has adopted a more nuanced position. While stating that Labour has no desire to dismantle fundamental human rights legislation, he has acknowledged the need for reform. He has suggested altering how UK courts interpret international law, particularly in cases involving asylum seekers with failed claims who use legal challenges to block their deportation. This middle-ground approach reflects an attempt to address public concerns about immigration without completely abandoning the ECHR.

The Rise of Reform UK

The political landscape is further complicated by the growing influence of Reform UK, led by Nigel Farage. The party has made withdrawal from the ECHR a central pillar of its platform, arguing it is essential for controlling unlawful immigration. Farage has called for a national referendum on the issue, believing it would galvanise public support and deliver a decisive mandate for change. He contends that only by departing from the convention can the UK effectively deport individuals who arrive via small boats.

Reform UK's hardline stance extends beyond the ECHR, advocating for the disapplication of other global agreements, including the 1951 Refugee Convention and the UN Convention Against Torture. This radical agenda puts significant pressure on the Conservatives, pushing them to adopt an increasingly tough position on immigration to avoid losing voters to their right-wing rivals. Polling data suggests strong support for departing from the ECHR among both Conservative and Reform voters.

Public Opinion and Political Reality

Recent polls indicate a divided public on the issue of ECHR withdrawal. While a YouGov poll in October 2025 showed 46% of the public oppose leaving compared to 29% in favour, the sentiment is highly polarised along party lines. A significant majority of Conservative and Reform UK supporters back withdrawal, whereas Labour and Liberal Democrat voters are strongly against it. This deep division highlights the issue's potential to be a major factor in future elections.

Interestingly, when presented with more nuanced options, public support for a complete exit diminishes. A 2024 survey found that 66% of respondents favoured some form of continued engagement with the ECHR, such as giving the UK Parliament the final say on rulings. This suggests that while there is an appetite for reform, a complete severance from the convention is not necessarily the majority view. Petitions calling for a referendum have so far failed to gain significant traction.

A Contentious History

The ECHR first became a hot-button issue in UK domestic politics in the year 2011, during David Cameron's premiership. The controversy centred on the legal challenge by John Hirst, a prisoner who successfully argued that the UK’s absolute prohibition on inmates voting was a human rights violation. In 2005, the court in Strasbourg sided with him, stating the UK's policy was disproportionate. Cameron’s predecessors, Gordon Brown and Tony Blair, had managed to sidestep the political fallout.

However, when Cameron expressed his visceral opposition to the idea of allowing incarcerated offenders to vote, his memorable comment pushed the ECHR into the centre of public consciousness. This single issue created a lasting impression that a distant European court was dictating policy to a sovereign UK parliament. The narrative of judicial overreach took hold, setting the stage for more than a decade of political tension over the convention's role in British law.

The British Roots of the Convention

Ironically, the ECHR was composed mainly by a British legal team in the aftermath of the Second World War. Its purpose was to establish a "never-again" collection of fundamental rights to prevent the recurrence of fascism in Europe. The convention was heavily influenced by long-standing British legal principles, such as habeas corpus, which protects against unlawful detention and is mirrored in Article 5 of the ECHR. The framework was intended to be a beacon of British values projected across the continent.

The European Court of Human Rights, based in Strasbourg, is responsible for policing these rights. When it finds a country in breach of the convention, member states work together through the Council of Europe—an entity separate from the European Union—to resolve the issue. In the United Kingdom, however, the Human Rights Act 1998 also exists, allowing domestic courts to handle cases involving ECHR rights, a system designed to "bring rights home" and reduce the need for lengthy appeals to Strasbourg.

Domestic Law and the Human Rights Act

The Human Rights Act 1998 integrated most of the ECHR's articles directly into UK domestic law. This means that individuals can challenge the actions of public bodies in British courts if they believe their rights have been violated. The Act requires UK courts to "take into account" the case law of the court in Strasbourg, creating a dialogue between the domestic judiciary and its European counterpart. It also obliges courts to interpret UK legislation in a way that is compatible with the convention wherever possible.

This integration has had a profound impact on UK law, particularly in devolved nations. The legislative assemblies in Scotland, Wales, and Northern Ireland are legally prevented from passing laws that are incompatible with the rights set out in the Human Rights Act. Repealing the Act, a necessary step in departing from the ECHR, would unravel this complex legal fabric and have significant constitutional implications across the United Kingdom.

Image Credit - by Department for International Trade and The Rt Hon Kemi Badenoch MPSimon Dawson / No 10 Downing Street, OGL 3, via Wikimedia Commons

The "Cat Story" and Public Perception

The narrative of ECHR overreach was further fuelled in 2011 by a story shared by then-Home Secretary Theresa May. At the Tory party conference, she spoke of a man from Bolivia who allegedly avoided deportation because he owned a pet cat. May used this anecdote to illustrate what she saw as the absurdity of human rights legislation preventing the removal of illegal immigrants.

However, England’s senior judges later clarified that the story, as presented by May, was not entirely accurate. While the cat, Maya, was mentioned in the man's legal challenge, it was only a minor component of the comprehensive evidence he submitted about his established life in the UK. A representative from the judiciary stated that the pet had no bearing on the final ruling. Yet, the story captured the public imagination, cementing the idea that human rights legislation was being misused.

Sovereignty and Judicial Power

A central figure in the intellectual argument against the ECHR is Professor Richard Ekins of Oxford University. His work on judicial power has been exceptionally influential on the British political right. He is a firm opponent of the convention, based on his belief that membership compromises the sovereignty of the UK. He contends that the court in Strasbourg has consistently widened the treaty's influence far beyond its initial mandate.

Professor Ekins points to a recent case in which the court determined Switzerland had violated human rights through its inadequate climate action. He argues this judgment imposes "open-ended and indefinite responsibilities" on member states, allowing an unelected court to interfere in complex areas of domestic policy, including social, economic, and foreign affairs. For Professor Ekins, this represents a direct challenge to the principles of parliamentary democracy, where laws should be made by the elected representatives of the people.

The Expanding Remit of the Court

The "living instrument" doctrine, which allows the court in Strasbourg to interpret the convention in light of contemporary conditions, is at the core of the sovereignty debate. Critics, including the former justice of the Supreme Court Lord Sumption, argue that this doctrine has allowed the court to "emancipate itself from the text" and effectively create new laws without a democratic mandate. Lord Sumption has been a vocal critic of what he sees as judicial overreach by the court in Strasbourg.

He highlights the expansion of Article 8, the right to a private and family life, as a prime example. Originally intended as a protection against state surveillance, Article 8 has been interpreted to cover a vast range of issues, including immigration, deportation, assisted suicide, and the legal status of illegitimate children. Lord Sumption contends that this expansion is not warranted by the convention's text and usurps the role of national politicians.

A Landmark Climate Ruling

The recent ruling against Switzerland has amplified concerns about the court’s expanding influence. The case was brought by a group of older Swiss women who argued their government’s inaction on climate change violated their human rights, making them more vulnerable to heatwaves. The court agreed, finding that Article 8 encompasses a right to effective protection from the serious adverse effects of climate change. This landmark judgment established a precedent for all 46 signatory states.

The ruling obliges governments to implement effective domestic policies to mitigate climate change, including setting and meeting greenhouse gas emission targets. While celebrated by climate activists as a major victory, the decision was criticised by some, including Tim Eicke KC, a British judge involved in the ruling, for going beyond the court's legitimate powers. The Swiss government itself expressed concern over "judicial activism," arguing its existing climate policies were sufficient.

Immigration and the "Right to Family Life"

The debate over the ECHR in the UK has been overwhelmingly dominated by the issue of immigration. Critics claim that Article 8, the right to a family and private life, is frequently used by foreign criminals and failed asylum seekers to avoid deportation. The argument is that individuals can establish a "private life" within the UK, even while here illegally, and then claim that deportation would be a disproportionate interference with that right.

Successive governments have sought to tighten the rules around how Article 8 is applied in immigration cases. The UK's immigration rules now include specific provisions that weigh the public interest in deporting foreign criminals against an individual's right to a family life. However, critics maintain that judges in immigration tribunals often make "extravagant" decisions that go far beyond the treaty's original purpose, undermining immigration control.

The Reality of Human Rights Appeals

Despite the political rhetoric, data suggests that human rights grounds are successful in only a small fraction of deportation appeals. A review of media coverage from the Bonavero Institute for Human Rights at Oxford University showed that under 1% of all foreign offenders appealing their deportation from the UK have successfully won using a human rights argument. When these matters progress to Strasbourg, the court typically dismisses them.

This indicates that while the ECHR can present challenges, it is not the insurmountable barrier to deportation that is often portrayed. Lord Sumption acknowledges that while some tribunal decisions have been questionable, the convention itself is not the primary obstacle. He argues that the extent to which the ECHR prevents deportations has been "substantially overblown" in the political debate.

Image  Credit - by Sfisek, CC BY-SA 3.0, via Wikimedia Commons

The Real Obstacles to Deportation

Lord Sumption contends that the two biggest challenges in removing unlawful immigrants have little to do with the ECHR. The first is the practical difficulty of finding a country that will accept them and is considered safe. The UK cannot return people to countries where they would face torture or inhuman treatment, an obligation that stems not only from the ECHR but also from other global agreements like the UN Convention Against Torture.

The second major obstacle is the 1951 Refugee Convention. This treaty requires the UK must process asylum claims and grant certain rights to refugees, regardless of whether they arrived illegally. It is this convention, rather than the ECHR, that governs the fundamental obligations towards those seeking asylum. Therefore, departing from the ECHR would not, in isolation, permit the administration to "stop the boats" or carry out mass deportations without addressing these other legal frameworks.

A Path to Reform?

Some experts believe that reform, rather than withdrawal, is a viable option. Jonathan Jones, a former head of the government's legal department, suggests that the UK could adopt a stricter interpretation of Article 8. He argues it is justifiable for the administration to introduce clearer rules that "contain" what it considers to be an overly expansive application of the right to a family life by the courts. This approach would allow the UK to stay within the convention while addressing specific concerns.

However, others, like the former Lord Chancellor for the Conservatives Alex Chalk, argue for a more urgent and radical overhaul of the treaty itself. He has suggested that a new European agreement on asylum and immigration is needed to reflect the realities of the 21st century. He has urged the United Kingdom to lead a rapid reform process, arguing that the existing framework is no longer fit for purpose in a world of mass migration.

The Risks of Withdrawal: Northern Ireland

One of the most significant and complex consequences of departing from the ECHR relates to the peace process within Northern Ireland. The 1998 Belfast/Good Friday Agreement, which brought an end to decades of conflict, has human rights protections integrated into its very structure. The agreement legally binds the administration in the UK to ensure that the rights contained in the convention are protected in the laws of Northern Ireland.

This commitment was fulfilled through the Human Rights Act 1998, which gives individuals in Northern Ireland direct access to the courts to enforce their ECHR rights. Critics of withdrawal warn that leaving the convention would be a direct breach of the Good Friday Agreement, potentially destabilising the delicate political balance and unravelling the hard-won peace. The Irish government has stated that the ECHR represents a "fundamental safeguard" in the agreement that cannot be negotiated away.

International Standing and Post-Brexit Deals

Beyond Northern Ireland, departing from the ECHR could have significant repercussions for the UK's international standing and its relationship with the EU. The post-Brexit trade pact with the EU includes a commitment from both sides to respect human rights and legal principles, with specific reference to the ECHR. Withdrawal could jeopardise parts of this agreement, particularly in areas like security and judicial cooperation.

The UK would also find itself in the company of Russia and Belarus as the only European nations outside the convention. Those who oppose withdrawal argue this would send a damaging signal to allies and undermine the UK's reputation as an advocate for democracy and human rights on the global stage. This concern has been raised by senior legal figures, who warn of the reputational damage of abandoning a treaty that Britain itself helped to create.

Defending the Convention's Legacy

Human rights attorneys and civil liberties groups are deeply worried about what might be sacrificed should the UK depart from the ECHR. They argue that the convention has been instrumental in securing justice for ordinary people and holding the state accountable for its actions. Harriet Wistrich, a prominent human rights attorney, points to the part played by the ECHR in cases like the Hillsborough disaster and the Rochdale grooming scandal.

She explains that the convention's Article 2, the right to life, was crucial in enabling the comprehensive inquests into the Hillsborough deaths, which examined the state's failures. Similarly, Article 8 has been used to hold police forces accountable for their mistreatment of victims of abuse. Wistrich warns that should the UK withdraw from the ECHR, it is these fundamental rights, which protect the most vulnerable, that will suffer the most.

An Uncertain Future

The debate over the UK's membership of the European Convention on Human Rights is far from settled. It has become a proxy for a wider struggle over national identity, sovereignty, and the balance of power between politicians and judges. The Tory Party has drawn a clear line in the sand, betting that a promise to depart from the ECHR will resonate with voters concerned about immigration and national control.

However, the path of withdrawal is fraught with legal, political, and constitutional complexities. The potential impact on the Good Friday Agreement, the UK's international relationships, and the rights of the country's citizens is profound. As the country heads towards another general election, the issue of whether to remain a signatory to the convention that Britain helped to build will undoubtedly be a defining issue, with the potential to reshape the nation for generations to come.