Sovereignty, but at what cost? Reassessing Britain’s Case for leaving the European Convention on Human Rights
- Lanre Pratt
- Nov 11
- 5 min read
Updated: Nov 26
What would it mean for the UK to withdraw from the ECHR?
Every few years, Britain seems to rediscover the idea that its sovereignty lies in cutting ties. First expressed with the EU, the next target increasingly seems to be the European Convention on Human Rights (ECHR). Could withdrawal be in the UK’s national interest? Would this improve the UK’s sovereignty and in what ways? This commentary argues that arguments for withdrawal serve political strategy rather than human rights protection. A move led by ulterior motives would likely damage practical governance, causing multiple unintended consequences for the UK in the long run.
Context and Debate
Supporters of the ECHR make their case on two fronts. First, the convention strengthens
Britain’s global credibility as a liberal democracy. Secondly, the ECHR complements, rather than constrains, parliamentary sovereignty. The Human Rights Act, 1998 (HRA) was crucial to this, serving as a compromise with Europe. Not only can Parliament override declarations of incompatibility, but the Act itself can be repealed by any future Parliament.
Alternatively, criticism of the ECHR has evolved into a tool of populist mobilisation. Early
consensus on decentralising fundamental rights from Parliament had waned by 2012. Amid a peak of Euroscepticism, opposition to the ECHR lay in perception. As observed by Baroness Kennedy and Professor Philippe Sands KC, despite functioning well, the ECHR was perceived to be too European. For Eurosceptics, this opened a valuable electoral strategy: portraying the ECHR as an obstacle to British sovereignty. Hirst v the United Kingdom (No 2), Abu Qatada as well as the ‘statutory gymnastics’ required to enact the Illegal Migration Act, 2023 all built on this narrative, and that withdrawal, as outlined in Nigel Farage’s recent plan, offered a quick fix to salient political issues.
Withdrawal and Immigration
Control over immigration remains the most emotionally charged justification for withdrawal.
As set out by Nigel Farage’s ten-minute rule, motion withdrawal would improve sovereignty by severing ties with the ECtHR. Farage argues this would stop the court blocking the UK from enacting policy (such as Rwanda) on “human rights” grounds. He concludes such would increase control over the UK’s borders, thus demonstrating agency and serving national interest.
Yet, this conclusion should be qualified by two points. Firstly, the Supreme Court ruling on the Safety of Rwanda Act, 2024, deemed the plan unlawful due to the UK’s international obligation of non-refoulement. This principle is embedded in multiple treaties by which the UK remains bound. Leaving the Convention would not dissolve those obligations. Withdrawal, then, offers a perception of control without producing any meaningful increase in legal power. Secondly, the ECHR is not a tool for migrants to leverage. As reflected in data from 2024, the percentage of migrants to successfully use the ECHR to block deportation stood at just 0.4%.
Withdrawal and the Union
When DUP MP Sammy Wilson backed Farage’s plan in August, it suggested some cross-Union support for withdrawal. Additionally, contrary to common perceptions, S. Laws KCB, KC (Hon) has shown that the Good Friday Agreement (GFA) does not explicitly rule out withdrawal. Yet, though it may be legally viable, withdrawal undermines the ethos surrounding negotiations to end the troubles. As noted, in May 2024, by Northern Ireland Affairs Committee Chair, Sir Robert Buckland, there is no benefit to be gained from withdrawal. The best example of this is how the ECHR has improved Northern Irish policing. First, with the Patten Reforms, which ensured policing complied with the ECHR and, second, in protecting the right to assembly for policing protests (Article 11).
This is also shown through Scotland’s relationship with the ECHR, with trans rights being a
particular point of tension. After blocking Scottish legislation in relation to gender identification in 2022, the UK Supreme Court’s decision in For Women Scotland has been argued to further deviate from Scotland’s approach to gender identification, while simultaneously ignoring ECHR requirements. Therefore, no single “British” interest in the ECHR debate, but rather often conflicting national ones.
Withdrawal and the Constitution
For some, withdrawal could serve as a reset for our constitutional culture. As argued by Lord
Lester in July we should ‘approach European law through UK law rather than round UK law.’
This romanticises our home-grown tradition of rights and liberties – Magna Carta and the Bill of Rights. Any modern rights framework such as the ECHR must build upon that heritage, not discard or bypass it. Alternatively, for Crossbencher Lord Walney, withdrawal is the option as reform would be impossible with 46 other state parties.
However, replacing the ECHR would mean years of legislative uncertainty and centralisation of power in Westminster. The idea of a “reset” misunderstands sovereignty as something static, that once we withdraw, we can immediately obtain. And so, while external sovereignty may improve, withdrawal could create a legitimacy crisis over human rights and thus undermine our internal sovereignty.
Policy Recommendations
A transitional commission – set up a cross-party commission in the Lords outlining the
process of withdrawal – which statutes Parliament would retain, modify or discard etc – the findings can go to the public to consider.
Amend the Human Rights Act – Include a ‘sovereignty clause’ confirming that Parliament remains the ultimate law-making authority. This could be accompanied by an updated ‘devolved clause’ accounting for their expansion in legislative power since 1998. Both are valuable clarifying measures and reduce political anxiety.
Conclusion
Though valid arguments have been raised on both sides, it seems that not much would be solved from withdrawal. The debate itself lacks clarity due to most critiques being made with ulterior motives. Thus, as reflected in policy recommendations, withdrawal should only be an option after clarifying measures and moderate reforms are implemented.
Bibliography
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