Why Britain must leave the ECHR

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The Conservative Party’s election manifesto, which was published yesterday, contains one glaring omission. UK prime minister Rishi Sunak has refused to commit to withdrawing the UK from the European Court of Human Rights (ECHR), despite intense pressure to do so from the right of his party.

Instead, the manifesto states that a future Conservative government would ‘hold an international summit’ to ‘reform international laws to make them fit for an age of mass migration’. Elsewhere, it says that ‘if we are forced to choose between our security and the jurisdiction of a foreign court, including the ECHR, we will always choose our security’. Quite what this means is anyone’s guess.

The ECHR is widely understood to be a major barrier to solving the small-boats crisis in the English Channel. After all, the Conservatives’ Rwanda policy, under which irregular migrants would be processed and resettled in the African nation, has continually been blocked by both the European court and our domestic courts. In 2022, a late-night ‘pajama injunction ’ was issued by an ECHR judge preventing the first Rwanda flight from taking off. The injunction was a huge embarrassment to the Tory government, and, thanks to the legal back and forth that has followed, not a single Rwanda flight has taken off since. In fact, only one asylum claimant has been sent to Rwanda so far – and that was through a separate, voluntary scheme.

Yet the Tories are still reluctant to get us out of the ECHR’s reach. This is despite the fact that various Conservative leaders have heavily hinted that they would do so. In the Conservative Party’s 2010 General Election manifesto, David Cameron proposed to replace the 1998 Human Rights Act – which incorporated the European Convention on Human Rights into UK law – with a UK Bill of Rights. The Bill of Rights would have allowed the UK courts, not the ECHR, to interpret the UK’s commitments under the European Convention. The legislation was eventually tabled in 2022 in the final months of Boris Johnson’s government, before being quietly scrapped in 2023 by Sunak.

The prime minister’s promise to ‘reform international law’ is not new, either. The 2005 Conservative manifesto proposed a complete withdrawal from the 1951 Refugee Convention, with ‘modernised international agreements on migration’ to be put in its place. Though the proposal was scrapped after the Tories lost that election, remaining a party to the Refugee Convention still presents issues. It was part of the reason why the UK Supreme Court ruled last year that the Rwanda plan was unlawful. (Sunak’s government sidestepped this ruling, earlier this year, when it passed the Safety of Rwanda Act.)

There is a strong, practical argument for withdrawing from these commitments. The Refugee Convention was drafted to deal with the specific problem of the displacement that arose from the Second World War. It is arguably unsuited to a time when patterns of refugee migration are very different. Thanks, in part, to our obligations under the European Convention, our current asylum system allows for dangerous criminals to remain in the UK. Meanwhile, huge numbers of people to whom we should be more compassionate are ignored and abandoned. The status quo is just not sustainable.

Leaving the ECHR is not just a question of practicalities – it’s a matter of democratic principle. The ECHR is an unaccountable body which has knowingly attempted to expand its reach in recent decades. Today, its judges have a greater say in matters that are more properly left to our elected politicians. You might think that the Human Rights Act and the ECHR have done lots of good things for our legal system or have defended important rights. But that doesn’t undermine the principle that faraway judges should be kept out of our politics as much as possible. Indeed, whatever you might think of the Rwanda plan, migration and asylum policy is surely a matter for our elected government and MPs in Westminster, not for unelected judges.

Sadly, the Tory Party seems incapable of grasping the nettle on this. It appears that we are destined, for the time being, to remain subject to the ECHR simply because no one has the political will to do anything about it.

We should restore democratic control over our laws, borders and rights by leaving the ECHR for good. Just don’t expect the Tories to get us there.

Luke Gittos is a spiked columnist and author. His most recent book is Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, which is published by Zero Books. Order it here.