By Abigail Bazyluk, a recent law graduate from the University of Southampton

Introduction

The European Convention on Human Rights (ECHR or the Convention),[1] drafted by the Council of Europe (CoE) following World War II,[2] bore greater political interconnectedness amongst “totalitarian darkness” and provided hope in defiance of totalitarianism.[3] The Convention opened for signature in 1950 and entered into force in 1953, so 2025 marks its 75th anniversary. However, instead of being celebrated, its relevance is increasingly questioned – especially amongst growing populism and polarisation over politically-charged issues such as irregular migration, climate change protests, and the situation in Palestine. This post explores widespread argumentation advocating for the Convention’s displacement in the United Kingdom (UK) and argues that the current UK human rights framework should be upheld.

The Foundations of the ECHR

The ECHR is often categorised by mainstream headlines in the UK as dangerous and unnecessary.[4] Criticism about the Convention’s legitimacy is often dominated by arguments concerning its alleged intrusion into domestic sovereignty.

‘Sovereignty’ can be described as the independence and authority a state has over its territory and the individuals within it.[5] This means a state is free to act as it wants within its own jurisdiction, however, critics cite international agreements (e.g., the ECHR) as a perceived erosion of this.[6] This anxiety over supranational normative interference is exacerbated in the current British political landscape by concerns about maintaining autonomy in designing responses to refugee and asylum seeker intake. For example, Kemi Badenoch – UK Opposition Leader – has often claimed that the “only way” to regain control over migration policy is by leaving the ECHR.[7]

This narrative is not new, and finds some support in academic positions. As early as 1950, Lauterpacht suggested that the implications of the ECHR were utopian,[8] while in 2001, A.W.B Simpson argued that there would have been limited consent to the ECHR, had its invasiveness been fully realised at the time of signing.[9] More recently, Loughlin has suggested that limiting the UK’s sovereignty results in its elimination altogether.[10] According to critics, the ECHR’s negative impact on the UK’s sovereignty is evidenced by the ability of UK citizens to bring human rights claims before the European Court of Human Rights (ECtHR or the Court),[11] the domestication of the Convention via the Human Rights Act (HRA),[12] the requirement of UK law to be interpreted compatibility with the ECHR, and that public bodies also act harmoniously with it.[13]

This sovereignty-limiting effect is not unique to the ECHR. Within all international and supranational agreements and multilateral fora, you make a gain (increased influence) from giving something up (potential sovereignty constraints) in return.[14] This is reflective of a broader practice: [15] for example, membership of the World Trade Organization (WTO), the North Atlantic Treaty Organization (NATO), and the United Nations (UN) have all impacted the UK’s sovereignty to some extent. The same could be said for international human rights instruments that establish both obligations and monitoring mechanisms to direct and control states’ human rights records.

Yet this is hardly a negative thing in itself. Political cooperation fosters justice and harmony, enhancing the protection of human rights in ways that cannot be achieved unilaterally.[16] The domestic and international courts, for example, should be viewed as a ‘team’ that fosters a unique level of trust, rather than as distinct entities.[17] Political division makes global challenges increasingly problematic to tackle; in the face of rising universal challenges, unifying tools like the ECHR should be treasured, regardless of potential sovereignty implications.Indeed, as Emily Reid has argued, increasing “anti-legal populism” can be damaging for the rule of law in the UK, harming the protection of human rights.[18]

Some argue that the substantive content of the Convention is feeble and inadequate. Lauterpacht (often described by friends as possessing “the bitterness of an idealist”) termed the ECHR “an object of disappointment”.[19] Recent commentators have suggested that it should be substituted with a British Bill of Rights, reflecting British values, ideals, and priorities. This arguably overlooks the UK’s historical and institutional agency regarding the ECHR, as well as the advantages of having a “basic” set of rights.

The UK was the first signatory, and played a crucial part in the literal drafting of the Convention itself, with extensive supervision from British Conservative politician and legal scholar Sir David Maxwell Fyfe.[20] The ECHR is also often labelled a “modern equivalent” of the British Magna Carta.[21] Moreover, its incorporation into domestic law via the HRA demonstrates in itself respect for the UK’s dualist system and parliamentary sovereignty, the main guardian of British values.

That the ECHR contains rights only of a “very basic and fundamental nature” is undeniable;[22] yet this hardly proves it is excessively intrusive. To the contrary, the fact that the Convention only lays out basic principles and rights allows greater leeway to signatories states. The Convention marked a “big-step forward” as the first legal recognition of human rights across multiple states.[23] It represented “a great intellectual challenge”[24] and an important exercise for the codification of “universal” human rights at the regional level, while recognising that some differences can exist in the interpretation of the content of certain rights and their application. As such, while the ECtHR has progressively clarified the meaning of the Convention rights in its case law, it has ways to leave some degree of discretion to states in those areas where there is no European consensus on certain rights and their limits. This is expanded in the next sections, which look at how the Court has exercised its jurisdictional and interpretive function.

Judicial Interpretation

The ECtHR employs evolutive interpretation to provide contemporary readings of the ECHR, recognising it as a “living instrument”.[25] Sceptics contend that this leads to judicial lawmaking, subsequent inconsistency in rulings, and ultimately undermines the rule of law.[26] Some maintain that the Court has judicially overreached through the creation of new rights, when their role is to protect the ones that already exist.[27] The Court has been accused of “judicial activism” by pursuing its own political agenda.

However, this criticism lacks nuance in the understanding of how the Court operates. As Sonnleitner writes, evolutive interpretation has a “complementary function” alongside the other interpretative methods, such as textual interpretation.[28] The original purpose of the right is retained,[29] while a degree of flexibility and openness more easily facilitates the application of rights “throughout different spatial and temporal context”.[30] Thus, the root of these seemingly “new” rights already have their foundation laid in the original drafting of the text. The judiciary would not be able to do this, and accordingly fulfil their role effectively, if the Convention was “frozen”.[31]

Critics also fail to acknowledge that politics and law are mutually reinforcing. Lord Sumption believes that the political process is a “casualty” of a situation where controversial issues have been turned into legal questions, when they are political in nature.[32] He uses the ECHR to illustrate this point, labelling Strasbourg as a leading champion of judge-made law.[33] In responding to Lord Sumption, Robert Spano – then President of the ECtHR – accurately suggested that the political process is not a victim but a significant participant, as both are crucial to the maintenance of a healthy democracy.[34] Lord Sumption appears to have an unrealistic view of contemporary politics, rooted in optimism amid rising populism and polarisation.[35] Political and legal interplay is increasingly important as a result, because of the consequent disregard for the core rights of individuals and minorities.[36]

Interpretative Principles

Two significant principles aid the Court in its interpretation of the ECHR: subsidiarity and the margin of appreciation. Subsidiarity ensures the fair balance of interests at national and international level.[37] Weak debate at a national level increases the likelihood of Court intervention.[38] Where a case proceeds, the margin of appreciation allows member states discretion in the assessment of their local needs and concerns.[39] The size of this discretion is determined by the interference’s nature, goal, and impact on individuals.[40] The margin is wider if there is no consensus among CoE member states regarding the significance of the relevant interest, or how it is best protected.[41]

Critics argue that these principles have been applied in an “ad hoc” style, due to a lack of specific criteria, undermining the judiciary’s transparency.[42] The margin of appreciation has been labelled an “escape valve” – a method to appear as if domestic interests are listened to.[43] Lord Hoffman stated that the Court’s use of this doctrine has been too narrow, and that as a result, states’ interests have been ignored.[44]

To an extent, one can agree that the principles’ application is inconsistent and limited. The case of Hirst is often invoked as an example of the Court’s intrusion and overstep.[45] In this case, the UK’s restriction on prisoners’ voting rights was found to be a breach of the ECHR, despite seven other states sharing the same practice, and another eight severely restricting prisoners’ rights.[46] However, critics often overlook the nuances of the case and the difference from other states: the UK did not merely have an “extensive restriction” on prisoners’ voting rights,[47] but a “blanket ban” which was deemed to compromise the core content of the right.[48] Moreover, to date, the UK continues to deny voting rights to prisoners, supporting the idea that the ECtHR is less intrusive than perceived.[49]

Additionally, given the diversity of legal framework across the CoE states, establishing a “clear and consistent criteria” would be challenging.[50] Vagueness also facilitates flexibility, and subsidiarity operates as a tool to mediate this, founding the appropriate national and international balance of interests.[51]

Should We Leave?

Leaving the Convention would be detrimental to the international reputation of the UK. In the broader Europe, only Russia and Belarus are not part of the CoE; the former was expelled in March 2022 following the invasion of Ukraine.[52] This makes for unfavourable company, sending a negative signal to the world regarding UK and its human rights stance.

This reputational risk could be mitigated by an alternative “highly robust domestic regime for upholding human rights”;[53] however, this would be “unlikely and difficult”.[54] Indeed, leaving the Convention would be complicated on a practical level. For instance, the Good Friday Agreement, established in 1998 following widespread violence and conflict labelled “the Troubles”,[55] incorporated the ECHR via the Northern Ireland Act 1998.[56] The Convention, therefore, played a crucial role in the establishment of an Agreement that has done Northern Ireland “an awful lot of good”.[57]

Furthermore, compliance with the ECHR is a key feature of the European Union (EU)-UK Trade and Cooperation Agreement,[58] established in the Brexit aftermath.[59] This is affirmed in article 763(1): that parties should continue to respect democracy, the rule of law, and human rights.[60] The UK should refrain from diminishing any further its involvement on the global stage since leaving the EU.

Additionally, protection of the ECHR and HRA is embedded in the statutes governing devolved powers in Scotland, Wales and Northern Ireland.[61] According to the Joint Committee on Human Rights, if the UK were to leave the ECHR, it should first get the permission of all of the devolved nations. However, this is highly unlikely to be obtained, especially given Scotland’s increasingly pro-EU orientation, and the challenges this would pose for Northern Ireland amid the Good Friday Agreement commitments.[62] Moreover, if a British Bill of Rights was introduced as a replacement, the scope of human rights protection would significantly reduce,[63] and there would be no evolutive interpretation in the absence of Strasbourg.[64]

Conclusion

Overall, the UK should continue to remain as a signatory to the ECHR. As withdrawal rhetoric continues, integrated within right-wing language and narratives, it is important that this is approached with nuance and depth in the ultimate conclusion that all individuals would be better off with the framework untouched. Immigration is – to an extent – a legitimate policy concern, however, this does not make it the root of all present issues. People who portray it as such tend towards “populist and authoritarian inclinations”.[65] Oversimplified, simplistic and divisive statements are made to mobilise collective xenophobic anxieties and garner easy political support, with no solution or explanation. The ECHR should not be used as a scapegoat for any problems in the UK, or as a tool for polarizing support from the electorate. Political commentary on this matter, therefore, should be approached with scepticism.

[1] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) 1950.

[2] Kevin Boyle, ‘The European Experience: The European Convention on Human Rights Reports from Regional Human Rights Mechanisms’ (2009) 10 VUWLawRw 167, 169.

[3] Ed Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights (OUP 2010) 5.

[4] Ibid 40.

[5] Christian Henderson, ‘The Arab Spring and the Notion of External State Sovereignty in International Law’ (2014) 35 UoLLR 175, 175.

[6] Samantha Besson, ‘Sovereignty, International Law and Democracy’ (2011) 22 Eur J Int Law 373, 376.

[7] Conservatives, ‘Kemi Badenoch: It is time for Britain to leave the ECHR’ (2025) < https://www.youtube.com/watch?v=x1wugijwqkU > accessed 14 October 2025.

[8] Hersch Lauterpacht, International Law and Human Rights (Stevens & Sons 1950) 14.

[9] Alfred William Brian Simpson, Human Rights and the End of Empire (OUP 2001) 4.

[10] Martin Loughlin, ‘The Erosion of Sovereignty’ (2016) 45 NJLP 57, 63.

[11] Ed Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights (OUP 2010) 2.

[12] Human Rights Act (HRA) 1998; David Yuratich, The Human Rights Act 1998 and the European Convention on Human Rights (OUP 2024) 251.

[13] Claire Brader, ‘Human Rights Act 1998: Does it need replacing?’ (House of Lords Library, 7 July 2022)< https://lordslibrary.parliament.uk/human-rights-act-1998-does-it-need-replacing/> accessed 14 October 2025.

[14] The Rest is Politics Leading, ‘Why Leaving the ECHR Won’t Be Enough | Baroness Hale’ (20 October 2025) < https://www.youtube.com/watch?v=NiM0IJYEmDY> accessed 22 October 2025.

[15] Ed Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights (OUP 2010) 40.

[16] Kevin Boyle, ‘The European Experience: The European Convention on Human Rights Reports from Regional Human Rights Mechanisms’ (2009) 10 VUWLawRw 167, 174.

[17] Ibid.

[18] Emily Reid, ‘The UK’s anti-legal populism’ (Verfassungsblog on matters constitutional, 17 June 2022)< https://verfassungsblog.de/the-uks-anti-legal-populism/> accessed 14 October 2025.

[19] Ed Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights (OUP 2010) 41; John Humphrey, ‘Human Rights and the United Nations: a great adventure’ (1984) 79 Am. J. Int’l L 195, 96.

[20] Eleni Frantzou, ‘Human Rights and British Values: The Role of the European Convention on Human Rights in the UK Today’ <https://www.ucl.ac.uk/public-policy/sites/public_policy/files/migrated-files/European_Convention_on_Human_Rights.pdf > accessed 14 October 2025.

[21] Jelena Ristik, ‘Right to Property: From Magna Carta to the European Convention on Human Rights’ (2015) 11 SEEU REVIEW 145, 149.

[22] Ibid 7.

[23] Arthur Robertson, The European Convention for the Protection of Human Rights (MUP 1953) 162.

[24] Ed Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights (OUP 2010) 36.

[25] Tyrer v United Kingdom App no 5856/72 (ECtHR, 25 April 1978) [31].

[26] Lisa Sonnleitner, ‘The Democratic Legitimacy of Evolutive Interpretation by the European Court of Human Rights’ [2019] 33 Temp Int’l & Comp LJ 279, 279-281.

[27] Bayatyan v Armenia App no 23459/03 (ECtHR, 7 July 2011) [2].

[28] Lisa Sonnleitner, ‘The Democratic Legitimacy of Evolutive Interpretation by the European Court of Human Rights’ [2019] 33 Temp Int’l & Comp LJ 279, 294.

[29] Francesca Pirola, ‘Between Deference and Activism: The ECtHR as a Court on States or a Court of Rights? Exploring the EctHR Interpretative Tools’ [2023] 1, 64.

[30] Ibid 42.

[31] Ibid 62.

[32] Jonathon Sumption, ‘The Limits of the Law’ (Kuala Lumpur, 20 November 2013).

[33] Ibid.

[34] Robert Spano, ‘The Democratic Virtues of Human Rights Law – A Response to Lord Sumption’s Reith Lectures’ (The Old Hall, Lincoln’s Inn, London, 20 February 2020).

[35] Ibid.

[36] Hannes Swoboda and Jan Marinus Wiersma, ‘Democracy, Populism and Minority Rights’ (2008), 39.

[37] Peter Cumper and Tom Lewis, ‘Blanket Bans, Subsidiarity, and the Procedural Turn of the European Court of Human Rights’ (2019) 88 Int’l & Comp. L.Q  611, 612.

[38] Ibid.

[39] Alexander Campbell and Eric Metcalfe, ‘Judicial deference and the margin of appreciation’ (2025) < https://plus.lexis.com/uk/practical-guidance-uk/judicial-deference-and-the-margin-of-apprecia/?crid=8aa9e263-b553-4409-88c4-9a69525679ea&pdproductcontenttypeid=urn:pct:244&pdiskwicview=false&pdpinpoint= > accessed 14 October 2025.

[40] Ibid.

[41] Ibid.

[42] Thomas Kleinlein, ‘The Procedural Approach of the European Court of Human Rights: Between Subsidiarity and Dynamic Revolution’ (2019) 68 Int’l & Comp. L.Q 91, 98.

[43] Simon Paul, ‘Governing from the Margins: The European Court of Human Rights’ Margin of Appreciation Doctrine as a Tool of Global Governance’ [2016] 12 CYELP 81, 108.

[44] Lord Hoffman, ‘The Universality of Human Rights’ (Judicial Studies Board Annual Lecture, 19 March 2009).

[45] Hirst v United Kingdom (No. 2) App no 74025/01 (ECtHR, 6 October 2005).

[46] Ibid; Simon Paul, ‘Governing from the Margins: The European Court of Human Rights’ Margin of Appreciation Doctrine as a Tool of Global Governance’ [2016] 12 CYELP 81, 89.

[47] Ibid.

[48] Hirst v United Kingdom (No. 2) App no 74025/01 (ECtHR, 6 October 2005) [45].

[49] Representation of the People Act 1983, s3.

[50] Thomas Kleinlein, ‘The Procedural Approach of the European Court of Human Rights: Between Subsidiarity and Dynamic Revolution’ (2019) 68 Int’l & Comp. L.Q 91, 98-99.

[51] Paolo Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’ (2003) 97 Am. J. Int’l L. 38, 38.

[52] James Thomas, ‘Fact check: Is the ECHR really blocking the UK from deporting migrants?’ (Euro News, 17 October 2024)< https://www.euronews.com/my-europe/2024/10/17/fact-check-is-the-echr-really-blocking-the-uk-from-deporting-migrants?> accessed 14 October 2025.

[53] Mark Elliot, ‘The Conservative leadership election and withdrawal from the European Convention on Human Rights’ (Public Law for Everyone, 11 October 2024)< https://publiclawforeveryone.com/2024/10/11/the-conservative-leadership-election-and-withdrawal-from-the-european-convention-on-human-rights/> accessed 14 October 2025.

[54] Ibid.

[55] Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland (with annexes)(entered into force 2 December 1999) 2114 UNTS 473 (Belfast Agreement/Good Friday Agreement); Striking a balance, the Northern Ireland peace process, available at https://rc-services-assets.s3.eu-west-1.amazonaws.com/s3fs-public/Striking_a_balance_The_Northern_Ireland_peace_process_Accord_Issue_8.pdf.  

[56] Northern Ireland Act 1998.

[57] Robert Buckland, ‘European Convention on Human Rights: potential implications for Northern Ireland of UK Withdrawal’ (2024) < https://committees.parliament.uk/publications/45010/documents/223298/default/> accessed 18th November 2024.

[58] Trade and Cooperation Agreement (UK/EU-EAEC) (entered into force 1 May 2021) TS No.8/2021.

[59] Valsamis Mitsilegas and Elspeth Guild, ‘The UK and the ECHR After Brexit: The Challenge of Immigration Control’ (Election Immigration Network, 14 March 2024)< https://www.ein.org.uk/blog/uk-and-echr-after-brexit-challenge-immigration-control> accessed 14 October 2025.

[60] Trade and Cooperation Agreement (UK/EU-EAEC) (entered into force 1 May 2021) TS No.8/2021 art 763(1).

[61] Alice Donald and Joelle Grogan, ‘Leaving the European Convention on Human Rights’ (UK in a Changing Europe, 15 May 2024)< https://ukandeu.ac.uk/explainers/leaving-the-european-convention-on-human-rights/> accessed 14 October 2025.

[62] Ibid.

[63] Parliamentary Assembly, Council of Europe, UK reform of its human rights legislation: consequences for domestic and European Human Rights protection (2023) 12.

[64] Ibid 10.

[65] Mark Elliot, ‘The Conservative leadership election and withdrawal from the European Convention on Human Rights’ (Public Law for Everyone, 11 October 2024)< https://publiclawforeveryone.com/2024/10/11/the-conservative-leadership-election-and-withdrawal-from-the-european-convention-on-human-rights/> accessed 14 October 2025.