Authored By: Menzi Mucavel
Swansea University
I. Introduction
The European Convention on Human Rights, opened for signature in 1950 and entering into force in 1953, celebrated its 75th anniversary in 2025 — though the occasion provided little cause for celebration in the United Kingdom. Rather than marking a milestone of shared achievement, the anniversary arrived against a backdrop of intensifying demands that the UK exit the Convention entirely. Reform UK has placed withdrawal at the top of its domestic policy agenda. The Conservative Party, under Kemi Badenoch’s leadership, has moved closer to adopting withdrawal as formal policy. Even within the governing Labour Party, some voices have floated the idea of suspending Convention obligations in the context of asylum and immigration control.
This political upheaval is remarkable given that the United Kingdom was not merely a signatory to the ECHR — it was one of its principal architects. British lawyers, including Sir David Maxwell-Fyfe, played a central role in drafting the Convention in the aftermath of the Second World War, seeing it as an instrument to prevent the recurrence of totalitarian atrocity. The UK was the first state to ratify the ECHR in 1951. For over seven decades, the Convention formed part of the fabric of British international obligations, even before it was incorporated into domestic law.
II. Legal Foundations: The ECHR and the Human Rights Act 1998
A. The Convention Framework
The ECHR is a treaty of the Council of Europe — an international organisation entirely distinct from the European Union. It currently binds 46 member states. The Convention sets out a catalogue of civil and political rights, including the right to life (Article 2), the prohibition of torture and inhuman or degrading treatment (Article 3), the right to liberty (Article 5), the right to a fair trial (Article 6), the right to respect for private and family life (Article 8), freedom of expression (Article 10), and freedom of assembly (Article 11). Subsequent Protocols have extended this catalogue, adding the prohibition of discrimination (Protocol 12), the right to education, and property rights.
The European Court of Human Rights (ECtHR), based in Strasbourg, adjudicates individual complaints brought against member states following the exhaustion of domestic remedies. The Court’s judgments are binding under Article 46 of the Convention. Execution of judgments is supervised by the Committee of Ministers. The Court’s use of the “living instrument” doctrine — interpreting the Convention in light of present-day conditions rather than original intent — has been a persistent source of tension with domestic courts and governments.
B. The Human Rights Act 1998
Until the enactment of the Human Rights Act 1998 (HRA), Convention rights were enforceable only at the international level. Individuals could petition Strasbourg, but courts in England, Wales, Scotland, and Northern Ireland could not apply Convention rights directly. The HRA changed this fundamentally. Under section 3, courts are required to interpret legislation compatibly with Convention rights so far as it is possible to do so. Under section 4, where such interpretation is not possible, higher courts may issue a declaration of incompatibility — a finding that does not strike down the legislation but creates political pressure for parliamentary reform. Under section 6, it is unlawful for public authorities to act incompatibly with Convention rights.
Crucially, the HRA does not make Strasbourg’s jurisprudence automatically binding on UK courts. Section 2 requires domestic courts to “take into account” ECtHR judgments when relevant, a formula that has allowed the UK Supreme Court to develop a nuanced relationship with Strasbourg — sometimes leading it, sometimes departing from it, and sometimes engaging in a structured dialogue about the appropriate scope of Convention rights. This margin of interpretive flexibility is often misunderstood or ignored in political debate.
III. Key Areas of Legal Tension
Immigration and Deportation
The single most politically charged area of ECHR litigation in the United Kingdom concerns immigration and deportation. Articles 3 and 8 have been invoked extensively to resist removal decisions. Article 3 prohibits return to a country where an individual faces a real risk of torture or inhuman treatment — a provision whose non-derogable character means it admits of no exceptions regardless of the individual’s conduct. Article 8 protects the right to family life and has been used to resist deportation of foreign national offenders with established family ties in the United Kingdom.
A particularly significant episode was the use of Rule 39 interim measures by a Strasbourg judge to halt the United Kingdom’s attempted deportation flight to Rwanda in June 2022, moments before take-off. The incident generated intense political controversy, with critics characterising it as judicial overreach by an unelected foreign judge. The Rwanda policy was subsequently struck down by the UK Supreme Court on different grounds — principally that Rwanda was not a safe third country — a domestic judicial decision whose authority no serious commentator questioned.
It is important to note that the scale of successful Strasbourg challenges to UK immigration decisions is considerably smaller than the political discourse suggests. In 2024, of 332 applications concerning the United Kingdom dealt with by the Court, 328 were declared inadmissible or struck out, and an adverse judgment was delivered in only one case. The portrayal of the ECtHR as systematically and routinely overriding UK immigration policy is not supported by the statistical record.
The ECtHR’s scrutiny of UK surveillance programmes has generated significant jurisprudential development. In Big Brother Watch and Others v United Kingdom [2021], the Grand Chamber found that aspects of the UK’s bulk interception regime under the Regulation of Investigatory Powers Act 2000 violated Articles 8 and 10 of the Convention. The UK’s subsequent enactment of the Investigatory Powers Act 2016 and further amendments have sought to bring surveillance law into Convention compliance, though ongoing litigation continues to test the boundaries.
IV. The Withdrawal Debate: Legal and Constitutional Analysis
A. The Political Landscape
The UK’s two principal right-of-centre parties have each aligned with ECHR scepticism, though with different degrees of commitment. Reform UK has placed withdrawal from the ECHR as a Day One legislative priority in government, proposing simultaneously to repeal the Human Rights Act, suspend the Refugee Convention, and overhaul the immigration system without reference to international treaty obligations. The Conservative Party, under Kemi Badenoch’s leadership, has moved towards making ECHR withdrawal a formal policy position, pending the outcome of an internal review. The animating logic for both parties is principally immigration control: the claim that the ECHR, and particularly Article 8, prevents the effective removal of foreign nationals.
The Labour government’s position is more nuanced. Ministers have acknowledged that both the HRA and the Convention itself may require reform, with Justice Secretary Shabana Mahmood addressing the Council of Europe to articulate a reform agenda centred on national discretion in immigration matters. However, the government has not proposed withdrawal and has emphasised the importance of continued ECHR membership for UK credibility, soft power, and international legal standing.
Public opinion data complicates the narrative of a public clamouring for withdrawal. A YouGov survey published in October 2025 found that 46% of the public favoured remaining in the ECHR against 29% who supported withdrawal, with the remaining respondents expressing uncertainty. Opposition to withdrawal is strong among Labour, Liberal Democrat, and Green voters, with only Conservative and Reform voters expressing majority or plurality support for leaving.
V. Conclusion
The United Kingdom’s relationship with the European Convention on Human Rights has never been uncomplicated. From the tension between parliamentary sovereignty and external judicial oversight, through the prisoner voting stand-off, to the explosive politics of immigration and deportation, the Convention has repeatedly tested the boundaries of the UK constitutional settlement. Those tensions are real and legally serious, and they deserve rigorous analysis rather than political theatre.
The case for withdrawal, however, does not withstand sustained legal scrutiny. The statistical record does not support the claim that the ECtHR routinely overrides UK policy. Withdrawal would endanger the Good Friday Agreement, jeopardise the UK-EU Trade and Cooperation Agreement, remove the UK from the Council of Europe, and leave the rights of individuals in the UK dependent on a statutory bill of rights susceptible to simple majority repeal. No democracy in the 75-year history of the Convention has ever voluntarily withdrawn. The UK, as a founding architect of the Convention, would bear a particular reputational cost.
The more legally credible path is reform: targeted, strategically pursued, and grounded in the Convention’s own mechanisms for dialogue between national systems and the Strasbourg court. The debate about the UK’s future in the ECHR is, at its core, a debate about what kind of constitutional order the United Kingdom wishes to have — one in which rights are entrenched against majoritarian pressure, or one in which they are perpetually subject to it. That is a question of the highest constitutional importance, and it deserves to be answered with legal precision rather than political sloganeering.
