From Legal Reset to Sunset  – UK Constitutional Law Association

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On 26 August 2025 Nigel Farage (Leader of Reform UK) and Zia Yusuf (now Head of Policy at Reform UK) unveiled their plan titled, ‘Operation Restoring Justice’. Key points from the plan were also reiterated at the Next Step Conference on 05 September 2025. Reform UK address the topic of immigration in their plan, adding further detail to the core pledges on immigration included in their 2024 manifesto. This is, arguably, one of the most contentious issues facing the country at present. While Reform UK currently have only four MPs, the party are leading in many opinion polls, support for the party appears to be increasing and the influence and reach of the party has increased significantly.  This gives Reform UK the ability to shape the current political agenda, despite the fact it is not one of the UK’s long-established political parties. The purpose of this blog post is to review Reform UK’s policy proposals and to give due consideration to some of the key legal issues and constitutional questions they raise. 

The policy document proposes to repeal the Human Rights Act 1998 (HRA), replacing it with a ‘British Bill of Rights’, and withdraw from the European Convention on Human Rights (ECHR), as well as ‘disapply’ various international conventions. This is meant to enable deportations and removals. Notwithstanding the objectives of the plan to ‘identify, detain, and deport illegal migrants’, the terms ‘illegal migrant’ and ‘illegal migration’, are not defined in Reform UK’s plan, and neither are they terms of art in domestic law.  The closest terms are ‘illegal entrant’ in the Immigration Act 1971 and ‘unlawful migration’ in section 1 of the Illegal Migration Act 2023, including references to ‘illegal migration’ made in the Explanatory Notes to the 2023 Act. The UN and EU adopt the term ‘irregular migration’. The policy document refers to persons with ‘no lawful right to remain in the UK’. Without further detail, this raises a question of whether this includes asylum seekers.  Asylum seekers are lawfully present in the UK whilst their claims are under consideration (section 77 of the Nationality, Immigration, and Asylum Act 2002). The plan proposes to expand existing inadmissibility provisions to asylum seekers who arrive ‘illegally’ – presumably, a reference to ‘illegal entrant’ under section 33 (1) of the Immigration Act 1971, that is, someone without a right of abode who arrives without entry clearance.  However, the ‘non-penalisation’ clause in Article 31 of the 1951 Refugee Convention (prohibiting signatories from penalising asylum seekers for their mode of arrival where there is ‘good cause’) has been incorporated into domestic law via section 31 of the Immigration and Asylum Act 1999.  It has also been embedded in case law such as Adimi [1991] and Mateta [2013]. 

Table of Contents

Repealing the HRA and withdrawing from the ECHR 

The HRA requires public authorities to act compatibly with Convention rights and requires UK courts to take account of judgments originating from the European Court of Human Rights. The HRA embeds rights into domestic immigration law to the extent any decision (including removals) found to disproportionately interfere with human rights would be unlawful.  Typically, Article 3 (against torture and cruel, inhuman, and degrading treatment) and Article 8 (private and family life) are at play in these immigration cases. 

There have been previous plans by successive Conservative governments to reform human rights law, including replacing the HRA with a British Bill of Rights. There is ample commentary on this area elsewhere (see here and here for example, including Labour’s recent stance). This is not a new or novel concept. However, the issue of withdrawal from ECHR membership is complicated.   

According to Reform UK, the UK ought to withdraw from the ECHR altogether.  This stands in contrast to other proposals, including Jack Straw’s recent call to remove from the HRA the requirement to take account of Strasbourg jurisprudence.  A withdrawal from the ECHR would mean a concurrent withdrawal from the Council of Europe under Article 7 of the Statute of the Council of Europe.  There is no possibility of remaining in one without the other.  The Reform UK plan does not discuss the potential implications of decoupling from the Council of Europe. Greece withdrew during military rule in the early 1970’s, rejoining in 1974 when democracy was restored.  To date, the only member to have left permanently is Russia.   

The position at common law  

Prior to the HRA, the common law recognised (pre-existing) fundamental rights now protected under the ECHR. Examples of common law rights include freedom of expression, the right to respect for private life, the right to liberty and the prohibition against torture. Indeed, there can be an overlap between fundamental common law rights and the ECHR, common law rights can be ‘at least as effective’ as, or ‘more extensive’ than, Convention rights and the ECHR is not an ‘exhaustive statement of’, nor does it ‘supersede’, common law rights (Lexis PSL Public Law Practical Guidance – Practice Note). The primacy of common law rights, as well as the importance of the continuing development of the common law in areas within the scope of the ECHR has been stressed in recent jurisprudence from the Supreme Court (notably, Osborn v The Parole Board [2013]). Article 53 ECHR provides a safeguard for existing human rights, with reference to the laws of States Parties to the ECHR which, in the context of the UK, exist at common law.  As such, if the UK were to withdraw from the ECHR, common law rights would still guide the judiciary and continue to offer some protection. In Reform UK’s speech unveiling ‘Operation Restoring Justice’, during Q&A The Spectator posed a question on this point: “…would it not be preferable instead to…go back to the old system of legal governance?” Nigel Farage responded: “Yeah I mean common law really is what you are talking about…and you know our tradition has always been that we’re free born people that everything is allowed unless there is a law that specifically prohibits from doing something…”. Nigel Farage was referring to the principle of residual rights at common law, in contrast to rights granted under statute.  It remains unclear how the British Bill of Rights proposed by Reform UK would add to common law rights, or whether the protection of rights would be as robust as they currently are under the HRA regime. 

Devolution 

The potential impact of devolution cannot be overlooked when considering Reform UK’s plan. Devolution and the UK’s relationship with the devolved nations is complex, intertwined and technical, with ‘contested grey areas’.  The constitutional implications are ‘messier than they might first appear’. The question arises whether the devolved nations could effectively ‘block’ repeal of the HRA and the creation of a British Bill of Rights. The UK Parliament would be able to repeal the HRA: the devolved legislatures cannot alter the HRA as it is a ‘protected enactment’ from modification (see Schedule 4, Part 1, section 2(f) of the Scotland Act 1998).

However, this would not end the incorporation of the ECHR in the devolved nations. The ECHR is incorporated in the devolution legislation directly. Human rights is a devolved competence (for example, the Scottish Parliament has the competence to enact legislation to observe and implement human rights obligations in their own territory according to section 7(2)(a) in Schedule 5 of the Scotland Act 1998). It is even possible that Scotland, or one of the other devolved nations, could implement a Bill incorporating international conventions into Scottish Law, as seen in the UNCRC (Incorporation) (Scotland) Act 2024 which incorporates the United Nations Convention on the Rights of the Child into Scottish law.  The Scottish Government is also planning a Scottish Bill of Rights. This would, however, only apply to devolved matters.  The HRA can be repealed, but withdrawal from the ECHR would require amendment of the devolution legislation.  The Scottish Government, for example, has robustly opposed any attempts to undermine existing human rights protections, and considers that its consent would be required under the Sewel Convention. This states the UK Parliament will, “not normally legislate with regard to devolved matters except with the agreement of the devolved legislature”. R v Miller [2017] confirmed the Sewel Convention is not a legal rule, despite being placed on a statutory footing (see section 2 of the Scotland Act 2016). It has been noted the legal position is ‘clear and straightforward’, although the political position is much less so, and it would depend on whether the Sewel Convention applies or is triggered.  The position has been astutely and neatly summarised as follows:  

The UK Parliament is free, as a matter of law and convention, to repeal the Human Rights Act. It is also free, as a matter of law, to amend the devolution statutes (so as to vary or remove the obligation to comply with the ECHR…and to enact a British Bill of Rights that applies throughout the UK. However, the Sewel Convention (absent devolved consent) precludes the amendment of the devolution legislation and the enactment of a British Bill of Rights that applies to the devolved nations in respect of devolved matters. The Sewel Convention (absent consent) also effectively precludes UK withdrawal from the ECHR because such withdrawal would…necessitate amendment of the devolution statutes so as to remove the obligation upon devolved institutions to comply with the ECHR 

If Reform UK were to repeal the HRA on its own, consent would not likely be required. However, consent in principle would likely be required for an amendment of the devolution legislation and a new Bill of Rights. The question over whether consent would be required could depend on what plan is implemented and is a complex point.

The ECHR and the Belfast (Good Friday) Agreement  

Another concern of decoupling from the ECHR is the potential undermining of the Belfast (Good Friday) Agreement 1998, a key element of the peace process and the basis of Northern Ireland’s devolved government.  The Agreement consists of two linked documents: the Multi-Party Agreement among most of Northern Ireland’s political parties, and the British–Irish Agreement between the British and Irish governments.  The ECHR is embedded specifically within the Multi-Party Agreement, with ECHR rights serving as legally enforceable safeguards binding the Assembly and other public bodies (section 24 of the Northern Ireland Act 1998).     

A recent report from the think tank, Policy Exchange, argued the UK’s withdrawal from the ECHR would not undermine the Agreement, on the basis that the provisions therein refer to domestic law rather than international law.  Each state party retains the freedom to leave the ECHR and to do so, ‘would neither be flouting the UK’s international obligations…nor failing to respect…the peace process’.  However, Gráinne Teggart, Deputy Director of Amnesty International Northern Ireland, has refuted this, stating that the UK’s repudiation of the ECHR would undermine the peace settlement.  This echoes academic opinions that a withdrawal from the ECHR would jeopardise the Good Friday Agreement. Aoife O’Donoghue and Colin Murray have observed that ‘the GFA requires, at least, the general incorporation of the ECHR’.  Reform UK’s policy document is silent on this point. When asked a question on this during Q&A, following the speech on 26 August 2025, Nigel Farage referred to a plan to renegotiate the Good Friday Agreement to remove a reference to the ECHR. This is a significant point of concern.

The Trade and Cooperation Agreement 2020 (TCA) 

After Brexit, trade relations between the UK and the rest of Europe have been regulated by the Trade and Cooperation Agreement 2020. Despite the UK’s withdrawal from the EU, the UK is still (currently) committed to the ECHR, by virtue of Article 763 of the TCA (note also para [7] of the Political Declaration accompanying the 2018 Withdrawal Agreement).   A decoupling from the ECHR could jeopardise this. Whilst membership in the Council of Europe is not specifically a requirement of the TCA, a denunciation of the ECHR specifically would allow the EU to terminate the agreement.  If this was done, it is far from clear whether an alternative agreement could be enacted, or how this would more widely affect the UK’s geopolitical objectives (see commentary here).   This could have profound effects on UK-EU relations. Notwithstanding the inclusion of a review clause within the TCA itself, it has been commented this does not amount to a revision of the TCA (see commentary on this here and here) and the EU may be unlikely to want to renegotiate this agreement as a whole or changes to this specific part.

Creating a legal duty for the Home Secretary to remove ‘illegal migrants’ and/or those without leave to remain  

Reform UK’s plan includes highlights from a proposed Illegal Migration (Mass Deportation) Bill, including a duty to remove ‘illegal migrants’.  We do not have the entire clause, so it is unclear how the provision would differ from section 2 of the Illegal Migration Act 2023 which is still not in effect.  Eva Doerr and Isaac Ricca-Richardson have called section 2 ‘illusory’ given the lack of functional return agreements with other countries.  The plan put forward by Reform UK envisions securing return arrangements through a ‘carrot and stick’ approach, though more detail will be needed to determine how the proposed sanctions and aid would be implemented.  Reform UK’s plan also envisions third-country arrangements similar to the previous Conservative government’s Rwanda plan—which the Supreme Court found unlawful—stating that a budget has been allocated for this.  As demonstrated in the case of R (AAA (Syria) and others) v Secretary of State for the Home Department [2023] any third-country arrangements would have to demonstrate that the receiving countries complied with the requirements of refugee law. Otherwise, these arrangements would be unlikely to withstand legal challenges.

The proposed Illegal Migration (Mass Deportation) Bill: a ‘transformative legal reset’  

Reform UK proposed the Illegal Migration (Mass Deportation) Bill, alongside what Zia Yusuf explained, in his speech on 26 August 2025, was a “non-exhaustive” list of legal measures. Reform UK state this Bill would ‘disapply’ the UN Refugee Convention, the UN Convention against Torture and the Council of Europe Anti-Trafficking Convention. Reform UK use the language of ‘disapplying’ these international conventions, which suggests the intention is to ‘derogate from’ i.e. to temporarily suspend the conventions.  This is distinct from ‘denunciation’, which refers to withdrawal from a treaty.  

There is no general provision relating to derogating from the UN Refugee Convention, the UN Convention Against Torture or the Council of Europe Anti-Trafficking Convention (see commentary here and here, for example). The conventions or treaties do contain provisions relating to withdrawal, addressed through a notification clause similar to that found in Article 58 ECHR (see, for example, Article 46 of the Anti-Trafficking Convention). However, the conventions are silent on the possibility of a State suspending them (treaties that address suspension are ‘not in abundance’ in international law).  

Notwithstanding this, Article 57 of the Vienna Convention provides for a treaty to be ‘disapplied’ or suspended where this is, ‘by consent of all the parties after consultation with the other contracting States’. However, attempting to suspend the UN Refugee Convention and the UN Convention against Torture would seem to be contrary to arguments likely to be raised in relation to the prohibition against torture and the principle of non-refoulement representing fundamental norms of international law. The prohibition against torture is known as an ‘absolute’ and a ‘non-derogable’ right. States must also respect the principle of non-refoulement in Article 33 of the UN Refugee Convention (so it is applicable even where a State is not a party to the ECHR).There is consensus in the literature that the prohibition against torture and the principle of non-refoulement are norms of customary international law (binding on all States) and have received the status of jus cogens (peremptory norms) that apply erga omnes i.e. to the international community as a whole, even in times of war, where national security is threatened or public emergency. These norms cannot be restricted or set aside and must be respected by all States.  

As has been discussed elsewhere, the UK has also signed the Optional Protocol to the Convention against Torture (and other human rights treaties also include legally binding optional declarations). Under Article 24 (1) and (2) of the Optional Protocol, the UK could postpone the implementation of their obligations under the Protocol for three years, with a possible extension of two years. However, notwithstanding this, it is impossible to derogate form the prohibition against torture. The International Law Commission in its draft conclusions has made it clear that even a treaty which conflicts with such a norm is void in its entirety, with no binding force, and violating a jus cogens norm would give rise to potential consequences in international law, such as a duty of State cooperation (although the enforcement of public international law raises a number of challenges and issues beyond the scope of this blog post). 

When would the sun set on these plans?    

During the Q&A that followed the speech delivered by Nigel Farage, Zia Yusuf also explained the Mass Deportation Bill would be in place for a temporary period, as part of a ‘five-year emergency programme’. The Bill would ‘sunset’ after this period.   

The inclusion of a sunset clause would mean the proposed legislation, or parts of it, would expire after a certain date. A recent example is the Retained EU Law (Revocation and Reform) Bill which had originally included provisions to ‘sunset’ retained EU Law at the end of 2023. However, that might not mean the sun would set, as the proposed Illegal Migration (Mass Deportation) Bill could provide for the effectiveness of the legislation to be reviewed after a certain period of time (known as a review provision), extended for a longer period through the use of secondary legislation, require a new Act to continue the existing position/arrangements, or allow the legislation to be brought to an end before it is due to expire (section 90 of the Coronavirus Act has been cited as an example). During the Q&A, a journalist from The Times put forward the question, ‘why do you want powers to sunset after 5 years?”. Nigel Farage responded: “We do think there is hope that the 1951 Refugee Convention of the UN can be revisited and redefined for the modern world, so we’ve done it for a period of five years and we will see where we go after that”.  Whilst there are virtues and a utility to sunset clauses, as has been commented elsewhere, constitutional issues such as the potential for normalising certain emergency powers, the potential impact on human rights, legislative scrutiny, as well as administrative and judicial oversight are important considerations. It would, of course, depend on how a sunset clause is drafted. 

Concluding Remarks – the ‘Next Step’ 

Any reform to human rights law risks undermining domestic and international stability. As has been pointed out, the proposed plan could have human rights implications for everyone within the UK’s jurisdiction, including migrants. Reform UK’s plan also raises practical hurdles, not just legal issues. The implications of these proposals will require further discussion as details emerge. The next UK general election is intended to take place no later than August 2029, and an early general election is, of course, not in Reform UK’s gift. Reform UK are, however, planning for a potential early election in 2027. As noted earlier, previous plans to remain a party to or withdraw from the ECHR, and repeal the HRA either with or without replacing it with a domestic Bill of Rights, aimed at so-called ‘illegal migration’, have formed a major part of the political agenda and been the subject of legislative proposals for some years. This recently gave Kemi Badenoch, Leader of the Opposition, cause to claim Reform UK are ‘copying the Conservative’s homework’.  However, ‘Operation Restoring Justice’ is an ambitious plan in its scope and scale that arguably breaks new ground, making it important to continue to monitor the development of these proposals. 

The authors would like to thank Se-shauna Wheatle and Mike Gordon for their time in reviewing, and for their very helpful comments on, earlier drafts of this post. Any views, including any errors or omissions, expressed in this post are the authors’ own and not those of their employer.

Dr Richard Brant, Senior Lecturer in Law at The University of Law and Barrister (unregistered)

Lauren Butler, Lecturer in Law at The University of Law and Solicitor (non-practising)

(Suggested citation: R. Brant, L. Butler, ‘Reform UK’s Plans for “Getting Tough on Illegal Immigration”: From Legal Reset to Sunset’, U.K. Const. L. Blog (15th September 2025) (available at https://ukconstitutionallaw.org/))

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