The Conservative Plan to Leave the ECHR: Political Reality and Legal Consequences
- UCL Law for All Society
- Oct 24
- 4 min read
By Sarah Wagner
After Brexit, the Conservative Party has turned its attention to another European institution: the European Convention on Human Rights (ECHR). Adopted in 1950 in the aftermath of the Second World War, the Convention was designed to safeguard core liberties, the right to life, liberty, and privacy across Europe. The European Court of Human Rights (ECtHR) in Strasbourg enforces these protections, and its rulings are binding on member states. The UK, a founding signatory, ratified the Convention in 1951 and embedded it in domestic law through the Human Rights Act 1998 (HRA).
Yet today, the ECHR sits at the heart of a growing political storm. Conservatives such as Kemi Badenoch and Suella Braverman argue that it undermines parliamentary sovereignty and obstructs government priorities on immigration, national security, and veterans’ rights. In October 2025, Badenoch confirmed that a future Conservative government would seek to withdraw from the ECHR and replace it with a “British Bill of Rights.”
But is this project legally feasible, and what would its consequences be for human rights, devolution, and the rule of law?
From Brexit to Strasbourg: The Conservative Case for Change
Since Brexit, the call to “take back control” has shaped much of Conservative rhetoric. The ECtHR’s power to either demand or impede legal changes has become a symbol of external interference. A review commissioned by Badenoch and led by Lord Wolfson claimed that the ECHR creates “significant barriers” to domestic policy-making, especially in three areas:
Immigration, where ECHR rulings have blocked deportations of asylum seekers and foreign offenders.
Housing, with Article 8 (right to private and family life) allegedly preventing “British citizens first” policies.
Sentencing, since Article 3 (prohibition of torture and inhuman or degrading treatment) limits tougher prison conditions.
For many Conservatives, the Strasbourg Court’s broad interpretation of these provisions exemplifies judicial overreach. They argue that leaving the ECHR would restore parliamentary sovereignty, allowing legally binding decisions to be issued solely by British courts.
Sovereignty and the Role of the Strasbourg Court
The push to leave the ECHR fits a wider ideological agenda: reasserting national sovereignty against supranational oversight. The right of individuals to petition the ECtHR after exhausting UK remedies is viewed by critics as an unacceptable intrusion into domestic justice. This tension is particularly visible in relation to immigration policy. The ECtHR halted deportation flights under the Rwanda asylum plan, citing Article 3, a move Conservatives described as defying the will of Parliament. However, public opinion does not fully align with this rhetoric. A YouGov poll found that 46% of Britons want to remain in the ECHR, compared with 29% who support withdrawal. The debate thus exposes a gap between populist discourse and constitutional reality.
Legal Pathways and Constitutional Changes
Withdrawal from the ECHR is legally possible under Article 58, which allows a state to renounce the Convention with six months’ notice to the Council of Europe. Yet the process would raise major constitutional issues. Following R (Miller) v Secretary of State for Exiting the EU (2017), the government cannot withdraw from treaties incorporated into domestic law without parliamentary approval. Since the ECHR is incorporated domestically through the HRA 1998, both Parliament and the executive would need to act together. Repealing the HRA would also dismantle a quarter-century of case law and unsettle devolution settlements. The Scotland Act 1998, Wales Act 2017, and the Good Friday Agreement (1998) all require compliance with the ECHR. In Northern Ireland, the Convention underpins civil rights protections and cross-community trust. Withdrawal could therefore breach the peace deal, violate international law, and destabilise the Union.
Human Rights and Devolution: Assessing the Impact of Withdrawal
The ECtHR has been instrumental in expanding rights across Europe, from LGBTQ+ equality and gender rights to privacy and fair trial protections. Through its “living instrument” doctrine, it adapts the Convention to modern contexts, a flexibility that has both advanced justice and fuelled political backlash. Leaving the ECHR would strip UK citizens of the right to appeal to Strasbourg, reducing oversight on issues like deportation, surveillance, or prisoners’ rights. It would also erode Britain’s global credibility. In 2022, Russia was expelled from the Council of Europe for human rights abuses. Voluntary withdrawal by the UK would send a damaging signal, aligning it with states that reject international scrutiny and weakening its moral authority to promote human rights abroad.
Beyond Withdrawal: Options for Reform and Continuity
Exiting the ECHR would not free the UK from its international obligations. The country remains bound by other treaties, notably the 1951 Geneva Convention, which prohibits deportation of individuals to countries where they face persecution. Even outside the ECHR, the Rwanda plan would still likely breach this principle. Rather than withdrawing entirely, the UK could reform the Human Rights Act to recalibrate the balance between sovereignty and judicial interpretation. Such reform could:
Clarify how UK courts apply Convention rights.
Maintain the UK’s reputation for upholding the rule of law.
Avoid destabilising the constitutional order.
This approach offers a pragmatic middle ground, preserving human rights protections while reaffirming parliamentary control over their domestic application.
The Conservative project to leave the ECHR poses one of the most significant constitutional challenges of the post-Brexit era. While framed as an act of sovereignty, it risks undermining rights protections, devolution, and the UK’s international standing. A reformed Human Rights Act, not withdrawal, would better balance national autonomy with global leadership. In a time of democratic backsliding, Britain’s strength lies not in leaving human rights institutions, but in leading them.
Bibliography:
Edited by Artyom Timofeev
Comments