Reforming the European Convention on Human Rights – UK Constitutional Law Association

Over the last few weeks criticism of the European Convention on Human Rights (ECHR/the Convention) and suggestions that the United Kingdom (U.K) should attempt to reform the supranational instrument, and by extension the Human Rights Act 1998 (HRA 1998), have dramatically intensified. Interestingly, calls for reform have not just come from the conservative side of the Convention-critical debate, as in recent years. They can be heard across the political spectrum and within parties that are strongly committed to the ECHR. The Lord Chancellor, Shabana Mahmood, Labour Party MPs, Jake Richards and Dan Tomlinson, and even the leader of the Liberal Democrats, Sir Ed Davey, have all, in their own way, argued for a re-examination of Britain’s relationship with the ECHR—especially in relation to Article 8 (Right to Family and Private Life) and its effect on decisions relating to immigration, asylum, and/or deportation of foreign criminals. More specifically, Mahmood and the Home Secretary, Yvette Cooper, are paving the way for Parliament to legislate and clarify the operation of Article 8. Their aim is to set out what can legitimately be claimed under the entitlement as a matter of domestic law.

Such rhetoric and policy proposals may sound workable. It might even give hope to those in government who believe it will reconcile the tension between ardent internationalists who wish to remain members of the Convention and those who believe national sovereignty is at risk due the ECHR curtailing immigration-control policies. However, the idea of attempting reform of the Convention is not new. Crucially, its track record has, historically, been unsuccessful domestically and internationally.

In 2006, the New Labour government was displeased with the way in which the ECHR and HRA 1998 prevented the then Home Secretary, David Blunkett, from deporting nine Afghan nationals, who arrived in the U.K after hijacking a plane to escape the Taliban regime. The Prime Minister, Tony Blair, described the outcome of the case as an “abuse of justice”. At a session of PMQs he went on to pledge that human rights would not impede “common sense” legislation that protected the country. Indeed, Blair was so taken aback by court’s decision that he also ordered a review of whether primary legislation was needed to address the issue of domestic court rulings that overruled the government in a way that was inconsistent with other European countries’ interpretation of the Convention. However, the outcome of this review led to no meaningful change.

While in 2014, the Conservative-Liberal Democrat coalition government, frustrated by the way in which it believed the ECHR-HRA 1998 constrained its ability to deport foreign nationals, inserted new provisions in the Nationality, Immigration and Asylum Act 2002. Through section 19 of the Immigration Act 2014, new regulations directed courts and tribunals as to how they were to determine “public interest questions”.  They instructed judges to place little weight on the private life or relationships that were established by a person while in the U.K unlawfully, and claimed the more serious a foreign criminal’s offence, the greater public interest there was in deportation. How the current Labour government’s proposals differ from those in 2014 in nature and scope remains unclear. 

There has also been a major European-wide attempt to reform the Convention. For example, the  Brighton process in 2012 led to the adoption of Protocol 15 and resulted in two substantive changes. First, reference to the principle of subsidiarity was added to the preamble of the Convention. This emphasised that it was domestic courts and member states who had primary responsibility for protecting rights. As such, the European Court of Human Rights (ECtHR/the Court) would give member states a wide margin of appreciation in relation to Convention compliance. Secondly, there was a tightening of the rules of admissibility—which aimed to limit the nature of applications brought before the ECtHR. However, Lord Guglielmo Verdirame KC recently argued that those measures have not had the desired effect that was originally hoped for, i.e., fewer cases being considered and less European Court intervention in member states’ application of the Convention-rights.  

While reform is feasible, it has not been successful. That is evident by Mahmood claiming the Convention continues to be “exploited” by foreign criminals and the Labour government’s intention, through legislation, to clarify Parliament’s sovereignty over domestic policy like immigration. But the fundamental issue for advocates of ECHR-HRA 1998 reform is not just their support for ineffective policy solutions that focus on Article 8 and immigration-control. Rather, it is their failure to understand the broader difficulties the Convention-HRA 1998 poses for the British constitution and the elected majority in Parliament’s control over domestic decision-making. Elsewhere, I have written about how Clement Attlee’s government looked to weaken Convention proposals during negotiations from  1949 to 1950. Importantly, my research offered an insight into the sovereignty-based concerns that fuelled the Labour government’s resistance towards the ECHR. From that historical exercise, it became apparent how the Convention, especially in its current form and operation via the HRA 1998, has created bigger difficulties than the ones reform proposals seek to address.

The aim of this post is to set out those issues and argue that withdrawal from the Convention is therefore the only meaningful vehicle for change.

The Practical Difficulties

Undermining Legislative Freedom

The value of our flexible, uncodified, constitution is that it provides the conditions for an elected majority in Parliament to have legislative freedom. The Attlee government had the foresight to recognise that any European Convention with an enforcement mechanism had the potential to place obligations on the elected majority in Parliament that could make it difficult to craft social and economic legislative initiatives without amending said initiatives in line with said obligations. Secondly, they believed that their socialistic ideas, which stemmed from decades of Labourism and designed alongside legitimate domestic actors (e.g., trade unions), should not be subject to external influence. Lastly, they disliked the very high chance that political and policy deliberations would, ultimately, centre around ECHR compatibility.

Today, through sections 3, 6, and 19 of the HRA 1998, substantive policy proposals are frequently discussed by reference to ECHR-compatibility and the resulting delays to implementation of policies can be debilitating for domestic legislative or public interest programmes. Indeed, to confine the legislative and policy-making process so that it disproportionately considers rights-compatibility distorts, limits, and significantly harms domestic deliberations about any proposed measure. When this happens, discussions that try to give equal weight to public interest and domestic necessity, for example, are few and far between. For example, the Conservative government’s original intention behind the 2022 Rwanda scheme—removing asylum seekers to Rwanda to have their claims determined—and the merits of a such a system were given much less attention when the ECtHR issued interim injunctions preventing planned deportations. Similar offshore systems have been considered by other European countries. A  more open discussion about asylum seekers, illegal migration, and third countries might have aided the policy-making process.

Furthermore, it should generally be recognised that the pursuit of wide-ranging domestic change and implementation of specifically crafted policies, that sits within any form of British political-ideological tradition, is inextricably tied to having the legal space to achieve such policy-aims. Or, in other words, legislative freedom. Therefore, calls for complete national control over domestic policy should not be viewed within negative notions of nationalism, anti-Europeanism, and insular sovereignty. This would be oversimplistic and fail to see the intended aims behind having legislative freedom. Key figures in the Attlee government understood the transformative potential of the British constitution. The welfare state, national health service, and full employment being offered to all classes was only possible because of an unfettered elected majority in Parliament.

Reform proposals that fall short of removing excessive Convention compatibility requirements will do little to restore legislative freedom—the importance of which cannot be understated.

An Activist European Court of Human Rights

How do current reform proposals tackle the growing activism and ever-changing jurisprudence of the ECtHR? More specifically, are said proposals going to address the Court’s methods of interpretation (i.e., the living instrument doctrine) which has been the root of much political discontent. Beginning in the 1970s, the doctrine saw the ECtHR depart from settled case-law in order to interpret Convention rights expansively or create new rights. This was felt necessary as the Court wanted to consider changes to the social and political consciousness across member states.

The Attlee government were cognisant of the risk posed by a supranational instrument and Court—that established a body of European case-law over time and embedded itself into member states’ legal systems—to domestic legislative initiatives. Therefore, they took steps to limit Convention proposals to a narrow set of rights without an enforcement body. But since Harold Wilson’s Labour government acceded to the jurisdiction of the ECtHR in 1966 the Convention has continuously been extrapolated beyond the formal catalogue of rights which the Attlee government signed up to. More specifically, the content and range of certain rights have incorporated moral and social views into policy areas.

For example, it is well-documented that Article 8 (Right to Respect Private and Family Life) has been expanded significantly beyond its text and original intention of preventing surveillance by the state. It now includes anything that intrudes on an individual person’s autonomous development. This includes but is not limited to: legal status of illegitimate children, immigration, criminal sentencing, the recording of crime, child abductions, policing of public demonstrations, employment, social security entitlements, planning, and eviction for non-payment of rent.

Secondly, the ECtHR has used its dynamic evolution of Convention rights to reinsert liberal compensation requirements where governments expropriate property. Indeed, the ECtHR’s position in relation to compensation is at odds with the original framing of the Right to Peaceful Enjoyment of Property (Article 1 Protocol 1 [A1P1] and, specifically, treating compensation as a sovereign issue for member states. I have written elsewhere about how the Attlee government had major concerns about compensation requirements and its effect on, among other things, nationalisation of property and land valuation. As such, they omitted all reference to compensation from the final version of A1P1. But because of the ECtHR’s propensity to be dynamic, domestic expropriation-compensation schemes are held to a more rigorous and substantive compatibility standard. This has the potential to reduce the decision-making ability of a democratically elected government, impede the implementation of its legislative agendas, and risk incompatibility with A1P1 which, ultimately, hinders domestic policy.

Further, Convention rights have been applied to situations that are doubtless within the realms of domestic public interest policy. For example, Convention rights have prevented suspected terrorists being deported, the ECtHR has required reviews of the automatic and indiscriminate blanket ban on prisoner voting, and the Court has substantively reviewed British government policies in relation to public ownership and late night flights from London Heathrow airport. The ECtHR has even waded into matters of climate change, expanding the standing requirement and opening the door to the Court imposing obligations on states to mitigate and adapt to the effects of climate change. While this could be construed as a noble position, it infringes heavily on member states’ domestic decision-making. Finally, it has been argued that Britain’s future policy of assisted suicide could be susceptible to Convention challenge and, more specifically, lead to the law being expanded to non-terminally ill adults—which in its current form is not permissible or the intended aim. 

Of course, the idea of a living instrument is to interpret Convention rights so that they reflect views about what a modern society should look like. However, to do so effectively transfers large degrees of a nation’s legislative function to an unelected supranational court. Current or any other reform proposal may struggle to address this issue satisfactorily.

The Salience of European Case-Law

Another concern which reform proposals fail to address is the continued operation of European jurisprudence and case-law in the British legal system.

The HRA 1998 requires—via section 2(1)—domestic courts to ‘take into account’ the jurisprudence of the ECtHR when Convention rights are being adjudicated. While the text of the HRA 1998 suggests there is some degree of discretion for domestic courts, there is, at the same time, legislative licence to the importation of ECtHR jurisprudence. Importantly, the principle of “mirroring” was eventually  established and articulated by Lord Bingham. In summary, he claimed it was the “duty” of national courts to keep pace with ECtHR jurisprudence. There has long been an inter-judicial debate about how far domestic courts should keep pace with the ECtHR’s interpretation of rights—veering from a permissive (Ullah (EM (Lebanon (FC) v Secretary of State for the Home Department [2008] UKHL 64; Limbuela [2005] UKHL 66; Re P and others [2008] UKHL 38, and Nicklinson [2014] UKSC 38) to more restrictive approach (Al-Skeini v Secretary of State for Defence [2007] UKHL 26 and AB v Secretary of State for Justice [2021] UKSC 28). On the whole, however, domestic courts will always be influenced and guided by the ECtHR’s case-law.

Reflecting on the ECHR-HRA 1998 and the idea of “constitutional migration”—the movement of legal standards between jurisdictions—Professor Roger Masterman has neatly argued that the HRA 1998 was a landmark moment in the “Europeanisation of UK constitutional law”. More specifically, he claims that an “essential component” of the HRA 1998 is the legislative choice it makes. By this he means the legislation favours internalising the entitlements found in the Convention and specifically directs domestic courts to be guided by ECtHR and external standards. As such, Masterman claims that sovereignty-based concerns are “pertinent”. Or, in other words, the adherence to external standards facilitates the erosion of sovereignty by transforming domestic courts into “agents of outside powers”.

The Realpolitik of European-wide Reform

The reality of reforming the ECHR means supranational reform and securing political negotiation at the Council of Europe (CoE) level. While the U.K is not alone in voicing support for treaty reform, it is unclear how much political will and time there is for a pan-European agreement. I say this not because of the complex and process-driven nature of European negotiations. But anyone who has read the historical record of Convention negotiations (Travaux Préparatoires) will know that substantive changes to such an instrument will require, possibly, years of work in and out of subcommittees and among the Committee of Ministers. Moreover, Professor Mark Elliot astutely notes reform proposals do not address the interlocking nature of Convention rights. For example, on the specific issue of the Labour government’s attempt to reform Article 8, deportation of foreign criminals can also be resisted under Article 3 (Prohibition on Torture and Degrading Treatment).

It is unclear whether reform proposals will also address the various Articles in the Convention that could place restrictions on the Labour government’s immigration-control or other areas of domestic policy. Lastly, like the U.K, many European countries have directly incorporated the ECHR into domestic law. Will all signatories to the Convention and the institutional personnel of the CoE be willing to make far-reaching changes? While recognising the need for reform, Alain Berset, Secretary-General of the CoE, recently stated “our task is not to weaken the Convention, but to keep it strong and relevant”.

A Philosophically Individualistic Instrument

Another important and separate objection to the Convention is its inherent incompatibility with the construction of a more reciprocal and mutually dependent society. By this I mean the ECHR was largely designed as a way in which citizens could treat rights as possessions and something to enforce either against one another or the state and its public interest programmes. Indeed, I have shown how the original drafters of the Convention and members of the European Movement (a pan-European, pro-federalist, conservative group) deliberately proposed a set of liberal rights around 19^th century notions of laissez-faire, individual freedom, political liberty, and the rule of law—which aimed to preserve the “moral values” and “democratic principles” that were of “common heritage” in Europe. The Attlee government and Labour Party were well aware of this. Through the policy of rights and duties, they tried to extinguish individualistic societal arrangements. It was no coincidence that a policy pamphlet produced by the party, during Convention negotiations, called Labour and the New Society, claimed:

the Labour Party declares that the true purpose of society is to promote and protect the dignity and well-being of the individual… we proclaim rights of man because we believe that people will increasingly recognise their responsibilities to each other if their rights as individuals are honoured.

While safeguarding civil and political rights is fundamental, the Convention has doubtless given way to a society that values individualistic possessions and choices—with no attachment to societal duties. Or, in other words, the Convention has deliberately elevated the status of individual rights over and above other interests. This is also true of the HRA 1998. During the first few years of its existence, a young Yvette Cooper, then Parliamentary Secretary to Lord Derry Irvine—who was instrumental in formulating the legislation—argued that the aim of the HRA 1998 was to secure the place of the individual among the masses. More specifically, it prevented governments and communities from running rough over the rights of individuals in the name of the majority interests. Cooper also claimed any emphasis that was now placed on the collective could no longer lead to a lower priority being given to the individual.

Overall, a more communitarian or reciprocal model of rights—that gives weight to societal duties and public interest—is philosophically incompatible with the ECHR-HRA 1998. Short of drafting a whole new Convention, it is unlikely reform can do anything to address this.  

Conclusion: Withdrawal not Reform

For all the reasons discussed above, reform proposals will not produce the Labour government’s desired outcome of  more control over domestic policy. Therefore, withdrawal from the ECHR and repeal of the HRA 1998 should be seriously examined. Especially if Britain wants to maintain true legislative freedom, resist an activist ECtHR, prevent oversight of an elected majority in Parliament, begin to shift away from Convention case-law, and move towards a new model of rights.

Of course, there is acute awareness that any form of withdrawal proposal would, ultimately, require untangling the complex position of the Convention and the HRA 1998 within the British constitution—which Dr. Frederick Cowell has described as being legally “locked in”. This includes: the provisions linking the legislative competence of the Northern Ireland (NI) Assembly to the protection of Convention rights; the Good Friday Agreement (GFA), which brought an end to the troubles in NI, mandating the incorporation of ECHR into the law of NI and maintaining access to the ECtHR; the ECHR being embedded into devolution statutes via compatibility requirements; and withdrawal conflicting with the Trade and Cooperation Agreement (TCA) signed with the European Union—which contains multiple references to continued membership of the Convention.

Any changes to these arrangements would be complex, require consent from the devolved Parliaments, and risk the operation of the GFA and TCA. In addition, issues surrounding the repeal of the HRA 1998 would also have to be resolved. More specifically, how to address, as some have argued, the HRA 1998 having its own separate identity from the Convention and the potential importance of rights-consciousness at common law if repeal did occur. This post does not consider how to address these questions, but perhaps the answers are not out of the realms of possibility.

Overall, withdrawal, rather than reform, should be seen as an opportunity for restoration and reemergence of the British constitution. One where rights are negotiated in Parliament by elected officials and a commixture of powers, which includes the judiciary and common law, uphold the freedoms we all cherish.

I would like to extend gratitude to UKCLA editors, Professor Michael Gordon and Dr. Paul Scott, for their extremely helpful feedback on previous drafts. Any errors in this post are my own.

Dr. Sanjit Nagi, Legal Historian.

(Suggested citation: S. Nagi, ‘A Road to Nowhere: Reforming the European Convention on Human Rights’, U.K. Const. L. Blog (2nd July 2025) (available at https://ukconstitutionallaw.org/))