Pros and Cons of UK Leaving ECHR

The European Convention on Human Rights (ECHR) was established in 1950 under the auspices of the Council of Europe to safeguard fundamental civil and political rights across Europe. The United Kingdom played a pioneering role in drafting the Convention, and in 1966 it granted individuals the right to petition the European Court of Human Rights (ECtHR) in Strasbourg. Later, through the Human Rights Act 1998 (HRA), the Convention rights were incorporated into domestic law, enabling UK courts to interpret legislation compatibly with the ECHR under section 3, and to issue declarations of incompatibility under section 4.

However, political debate in recent years has intensified over whether the UK should withdraw from the ECHR altogether. Proponents argue that such a move would restore parliamentary sovereignty and national control, while critics warn that it would undermine human rights protection, constitutional stability, and the UK’s international reputation. This blog post will critically evaluate both sides of the debate by analysing the potential advantages and disadvantages of the UK leaving the ECHR.

Arguments in Favour of Leaving the ECHR

One of the strongest arguments in favour of withdrawal is the restoration of parliamentary sovereignty, which is a foundational principle of the UK constitution. Critics of the ECHR contend that the ECtHR exercises excessive judicial influence over British law by interpreting the Convention expansively through its living instrument doctrine. In Tyrer v United Kingdom (1978), for example, the Court held that judicial corporal punishment breached Article 3, reasoning that the Convention must evolve with contemporary values. Supporters of withdrawal argue that such decisions allow unelected foreign judges to shape UK law, thereby undermining democratic accountability. Leaving the ECHR, they suggest, would ensure that ultimate authority over rights interpretation rests with the UK Parliament and courts.

Another argument concerns national security and immigration control. Critics claim that the ECtHR has impeded the UK’s ability to deport foreign criminals and suspected terrorists. In Abu Qatada v United Kingdom (2012), the Court blocked deportation to Jordan on the grounds that evidence obtained through torture might be used at trial, violating Article 6. Similar rulings have been perceived as frustrating domestic counterterrorism efforts. Advocates of withdrawal argue that the UK should have sole discretion to balance individual rights with collective security, free from external judicial interference.

Supporters also propose replacing the ECHR framework with a British Bill of Rights, tailored to reflect national values and the UK’s common law tradition. This would allow Parliament to codify human rights in a way that respects individual liberties but grants greater flexibility to the executive and legislature. For instance, rights such as freedom of expression and privacy could be maintained, while preventing what critics describe as judicial mission creep (the phenomenon where courts or other judicial bodies expand their powers or responsibilities beyond their original purpose) by the ECtHR. By designing its own domestic framework, the UK could retain a strong rights culture while avoiding supranational constraints.

Finally, withdrawal could address concerns over judicial overreach. The ECtHR’s interpretive expansion of Convention rights has occasionally been viewed as legislating rather than adjudicating. In Hirst v United Kingdom (No 2) (2005), the Court ruled that a blanket ban on prisoner voting violated Article 3 of Protocol No. 1. Despite parliamentary resistance, the UK was pressured to modify its law, leading to tension between Strasbourg and Westminster. Proponents of leaving argue that democratic legitimacy is best preserved when elected representatives, not international judges, make decisions about sensitive moral and political issues.

Arguments Against Leaving the ECHR Opponents of withdrawal emphasise that the ECHR provides a binding legal framework safeguarding individual rights such as the right to life (Article 2), the prohibition of torture (Article 3), and the right to a fair trial (Article 6). These rights are enforceable through both domestic courts under the HRA and the ECtHR in Strasbourg. If the UK were to leave the ECHR, individuals would lose this external avenue for redress, leaving them reliant solely on domestic law, which Parliament could amend or repeal at will. This could particularly endanger vulnerable groups, such as asylum seekers and prisoners, who often rely on Strasbourg judgments to secure justice.

A further consequence of leaving would be significant reputational damage. The UK has historically been a champion of human rights, playing a central role in drafting the ECHR after the atrocities of the Second World War. Withdrawal would align the UK with states such as Russia, which left the Convention in 2022 after its invasion of Ukraine, and Belarus, which was never a member. Such a move could weaken the UK’s moral authority in promoting democracy and the rule of law internationally. It could also cast doubt on the UK’s commitment to international norms, undermining its position in organisations like the Council of Europe and the United Nations.

Leaving the ECHR could also create serious constitutional complications, particularly concerning the devolved nations. The Convention is embedded within the devolution settlements for Scotland, Wales, and Northern Ireland. Under the Good Friday Agreement (1998), the UK is obliged to ensure that the ECHR remains enforceable in Northern Ireland. Withdrawal would therefore risk breaching international obligations and destabilising the peace process. Moreover, the Scottish Government has signalled that it would strongly oppose such a move, potentially reigniting constitutional tensions and calls for independence.

The ECtHR serves as a vital safeguard of last resort, ensuring accountability when domestic remedies fail. Cases such as Osman v United Kingdom (1998) and Big Brother Watch v United Kingdom (2021) demonstrate how individuals have relied on Strasbourg to hold the state accountable for failures to protect life or privacy. Without this external oversight, there would be fewer checks on executive power, increasing the risk of human rights violations going unremedied. Critics of withdrawal warn that the absence of an international tribunal could erode public trust in the UK’s commitment to justice and the rule of law.

Lastly, leaving the ECHR could jeopardise the UK’s international commitments. The EU–UK Trade and Cooperation Agreement (TCA), which governs post-Brexit relations, assumes continued adherence to the ECHR, especially in areas like law enforcement cooperation and data sharing. Withdrawal could therefore trigger legal disputes or suspension of cooperation mechanisms. It might also hinder extradition arrangements and mutual recognition of judgments within Europe, complicating the UK’s foreign and security policy. 

The ECHR has served for over seventy years as a cornerstone of human rights protection and international cooperation. The debate over the UK’s potential withdrawal from the ECHR raises fundamental questions about sovereignty, democracy, and the protection of civil liberties. On one hand, leaving the ECHR could reaffirm parliamentary supremacy and allow the creation of a bespoke domestic rights framework. On the other hand, it would weaken entrenched human rights protections, undermine the rule of law, and destabilise constitutional arrangements, particularly in Northern Ireland and Scotland. The desire for domestic autonomy is understandable, yet the costs of withdrawal, both legally and politically, must be carefully considered.