For the first time, leaving the European Convention on Human Rights (ECHR) is a part of the United Kingdom Conservative Party’s election manifesto. The leader of the opposition, Kemi Badenoch, even insisted that she will not allow anyone who does not support the UK’s withdrawal from the ECHR to run for parliament as a Conservative candidate.
In order to explain the legality of this move, Lord Wolfson of Tredegar, the shadow attorney general, authored a 185-page report claiming that the ECHR does not allow a stringent immigration policy. According to Lord Wolfson, withdrawing from the agreement is necessary in order to achieve this policy goal. In addition, he claimed that leaving the ECHR does not violate the Belfast Agreement (“Good Friday Agreement”). In my estimation, Wolfson is right that such a move is legally possible, but he is ignoring some significant legal and political consequences of withdrawing from the ECHR.
The Conservative argument for the legality of the withdrawal
Unlike the European Union (EU), the Council of Europe, of which the UK is a founding member, always had an explicit mandate to promote human rights. The Statute of the Council of Europe was signed in London, following the efforts of Sir Winston Churchill. The only countries on the continent that are not parties to the ECHR (and thus not members of the Council of Europe) are Russia (which never withdrew, but was expelled) and Belarus.
However, the British right, including Churchill’s own party, now wishes to leave the ECHR. Their rationale is immigration: supporters seek to narrow the legal options available to asylum seekers to legally challenge their deportation by removing their access to the European Court of Human Rights in Strasbourg.
The desired immigration policy, as defined by Lord Wolfson, embraces the following three propositions: “(1) that illegal arrivals are detained and rapidly removed, (2) that asylum claims from new arrivals or overstayers are rendered inadmissible and subject to removal, and (3) that foreign national offenders are subject to deportation.”
It is already clear that applying such a policy—for example, deporting asylum seekers without giving them a chance to challenge the decision in order to achieve the Conservative Party’s stated goal of deporting 750,000 foreigners—comes at the price of sacrificing human rights. Lord Wolfson arrives at the conclusion that the ECHR cannot be interpreted in a way that allows this action, and he is correct: it is hard to see how deporting people without considering their application is not a violation of the right to an effective remedy and the right to private and family life, both of which are protected under the ECHR. The ECHR has affirmed this in multiple cases (see, for example, De Souza Ribeiro v. France).
I will paraphrase Wolfson’s argument by trying to answer a slightly provocative question: Can the laws of the UK allow a bank robbery? After reviewing statutes and court decisions, the only reasonable interpretation of the law is that bank robbery is strictly illegal. Thus, if we wish to rob a bank without breaking the law, the law must change.
This is an accurate legal analysis, but it raises moral as well as legal questions. For example, why aspire to rob a bank in the first place? How does this aspiration align with the principles of every liberal legal system, such as the right to property?
Returning to the subject at hand, I do not claim that the UK has no legal or moral right to control its borders or to deny entry to some people, as every sovereign state (including all parties to the ECHR) does. The problem is the desire to exclude human rights considerations from this procedure.
Moreover, the proposed withdrawal’s impact on human rights in the UK will go far beyond immigration: Badenoch confirmed that the next step would be repealing the Human Rights Act (1998), which incorporated the rights enshrined in the ECHR into UK law.
On multiple occasions, Wolfson mentions Australia as an example to imitate. However, Australian immigration policy routinely attracts criticism over human rights violations. Doing so would lead to what Kim Lane Scheppele has coined as a “Frankenstate,” defined as adopting the worst practices from democracies around the world, removing them from their original context to achieve an ultimately non-democratic result. This is not new: the British right has long used the code name “Australia” instead of saying “hard Brexit” or “no special relationship with Europe.”
The Northern Irish problem
Further, Wolfson claims that a withdrawal from the ECHR is not a violation of the Good Friday Agreement in Northern Ireland, which actually comprises two separate agreements. The first is a political, non-legally binding agreement between political parties in Northern Ireland. This is not an international agreement. The second is a treaty between the UK and the Republic of Ireland, committing to support the political agreement, which is legally binding. Only the first agreement is built on the foundations of the ECHR. Thus, leaving the ECHR is not in and of itself a violation of the international agreement between the UK and Ireland.
However, as Wolfson himself admits, problems could arise if we interpret the withdrawal from the ECHR, which is central to the political agreement, as reflecting a change in the UK’s commitment to support said non-binding agreement. When the Good Friday Agreement was signed, the UK and Ireland were both EU members and parties to the ECHR. Now that the UK has left the former organization, Ireland and many in Northern Ireland might dispute the British commitment to peace if it leaves the latter as well. Treating the Good Friday Agreement, which ended decades of bloodshed, as a mere piece of paper, since it is non-legally binding, does not help Wolfson’s claim either.
Ultimately, the UK can, legally speaking, withdraw from the ECHR. Even that will lead to challenges, especially from the Republic of Ireland and some in Northern Ireland. Politically, the consequences could be more complex than the Conservatives seem to believe. We should also remember that, according to the latest polls, it is not the Conservatives who will lead the next right-wing government in the UK, but rather Reform UK. Reform is also committed to leaving the ECHR, but this means the process might unfold in a manner very different from what the Conservatives currently hope.