Why can’t we just leave the European Convention on Human Rights?

Anyone reading the news over the past two days could be forgiven for feeling a certain sense of déjà vu. Senior figures in government, including an unnamed cabinet minister, have suggested that if Rwanda flights removing asylum seekers are blocked by the courts, Conservatives would ‘inevitably’ back moves to leave the European Convention on Human Rights. The Telegraph reports that up to a third of the cabinet are prepared to back leaving the convention. Backbenchers are restless.  

These threats to leave the ECHR seem to recur cyclically. Whether the issue is prisoners voting, deporting foreign criminals, or stopping small boats, the convention is inescapably the villain of the day.

Keen observers might note that this is not the first time that the Conservatives have taken aim at human rights laws. In their 2010 election manifesto, the party promised to ‘replace the Human Rights Act with a UK Bill of Rights’. The 2015 manifesto went further and claimed that they would ‘scrap the Human Rights Act and curtail the role of the European Court of Human Rights, so that foreign criminals can be more easily deported from Britain.’

Following the 2019 election, we saw the introduction of Dominic Raab’s much derided Bill of Rights Bill which would have repealed the Human Rights Act and reformed domestic human rights laws. The Bill was introduced in June 2022, but it never received a second reading. It was withdrawn in June 2023.  

These unhappy precedents may go some way to explain why the government’s official position is that the UK will remain in the ECHR and abide by its international treaty obligations.

I believe that the ECHR does far more good than harm, and it would be extremely troubling if the UK became the only European democracy to leave the convention (joining the select club of Russia and Belarus). But anyone who truly wishes to exit the ECHR might be forgiven for being confused. The government retains a large majority, the convention allows parties to exit. And it seems very likely that, even if the government wins its case on Rwanda in the Supreme Court, the European Court of Human Rights will intervene in some way. So why can’t we just leave now? Why is it always jam tomorrow?

The truth is that the UK has baked in the ECHR into a number of other agreements and it is hard to see how it would be possible for the UK to depart the convention without causing some significant problems (potentially resulting in the UK breaching its obligations under international law).

Almost inevitably, the first issue relates to Northern Ireland. The Good Friday Agreement makes specific reference to the ECHR and states, in clear terms, that it will be used as a ‘safeguard’ to protect all sections of the community and that it will be incorporated into Northern Ireland law.

The text of the ECHR makes clear that it is not possible to restrict the jurisdiction of the convention to Northern Ireland, in the manner of the NI Protocol. State parties to the ECHR are required to ‘secure to everyone within their jurisdiction’ the rights and freedoms set out in the convention. Simply put, denouncing the ECHR would ultimately lead to the UK breaching the terms of the Good Friday Agreement.

The second issue relates to the UK’s relations with the European Union. While the ECHR is not EU law (rather it is a convention overseen by the Council of Europe, which comprises 46 member states) the EU included references to the ECHR in the Trade and Cooperation Agreement agreed with Boris Johnson’s government in 2020. This relates in particular to law enforcement and judicial cooperation. Put bluntly, if the UK left the ECHR, cooperation on issues such as extradition and criminal records would come to an end, since they are dependent on parties’ adherence to the convention.

Respect for the rule of law and human rights is also set out as one of the ‘essential elements’ of the 2020 Brexit agreement, the breach of which could justify the termination of the deal. This would be a nuclear option and seems unlikely, but it is something the government would have to consider.  

Finally, if the UK denounced the ECHR, it would also likely depart from the Council of Europe. While the ECHR is the Council’s most famous achievement, it is responsible for many other multinational treaties – including the Istanbul convention (combating violence against women) which the UK ratified in 2022. It is also responsible for conventions on trafficking and cybercrime. The Council of Europe is an effective forum for international cooperation. Having exited the EU, it might be regrettable if the UK states that it is also unwilling to cooperate with its neighbours on these issues.  

There are many positive reasons to remain a member of the ECHR. It is also far from evident that exiting the convention would have any significant impact on the UK’s ability to tackle illegal migration – particularly considering the enormous cost of the Rwanda plan and the number of migrants arriving on small boats. And it would be understandable if Rishi Sunak did not wish to open fresh wounds over Northern Ireland or the UK’s relations with the EU.  

There will be plenty of cynics who believe that the government is simply using the issue as a political dividing line with Labour. But even those who support leaving the EHCR might have to concede that exiting the convention is likely to remain an undeliverable political promise.