The new immigration hot potato: How the ECHR was hijacked by the right

The tide may finally be turning on Brexit. “The past doesn’t have to define the future, but we must acknowledge the damage Brexit caused,” said Rachel Reeves this week. The Chancellor even suggested Brexit’s economic impact has been worse than critics predicted at the time.

Reeves’ remarks are the latest in a series of interventions that signal a growing confidence among ministers in openly criticising Brexit. But while the government starts to finally acknowledge the damage, the right appear to be gearing up for the next big rupture, with potentially even more far-reaching consequences – leaving the European Convention of Human Rights (ECHR).

Hijacked by the immigration debate

On the eve of the Conservative Party’s annual conference, and under intense pressure from Reform, Kemi Badenoch announced that the Tories would withdraw the UK from the ECHR, if they win the next election. Seeking to toughen the position she inherited from Rishi Sunak, Badenoch, like many on the party’s right, blames the ECHR for blocking tougher measures on migrant deportations. The Tories are likely still reeling from the embarrassment of June 2022, when their controversial plan to send asylum seekers to Rwanda was halted at the last minute by a ruling from the ECHR, dealing a major blow to Boris Johnson’s government.

“I have not come to this decision lightly,” Badenoch said. “But it is clear that it is necessary [leaving the EHCR] to protect our borders, our veterans, and our citizens.”

After all, Kemi Badenoch can’t afford to be appear weak on immigration, especially when Nigel Farage has vowed that his first act as prime minister would be to pull the UK out of the ECHR.

Yes, Reform UK has gone all-in on the claim that the ECHR is the key obstacle to fixing the UK’s immigration system. Farage argues that leaving the ECHR, and other international treaties, would allow the government to crack down harder on illegal immigration.

In August, Farage announced that a Reform UK government would introduce an Illegal Migration (Mass Deportation) Bill, and to make it law, would withdraw from the ECHR altogether. In its place, he pledged to introduce a new British Bill of Rights. For now, however, there are no details about what Farage’s proposed Bill of Rights would actually contain.

The Reform leader also insists that “three quarters of the country would cheer to the rafters,” at such a move.

Public opinion tells a different story

But Farage’s claims are not backed by public opinion. A recent YouGov survey shows that the public are opposed to leaving the ECHR, with 46 percent saying we should remain a member compared to 29 percent saying we should withdraw. The remaining 24 percent are unsure.

Support for leaving is highest among Reform UK voters, with 72 percent in favour. Among Conservative voters, that figure drops to just 44 percent. In contrast, 82 percent of Labour supporters, 76 percent of Lib Dems, and 85 percent of Green voters want the UK to remain a member.

The European Convention of Human Rights came into force in 1953 as part of the post-war creation of a rule-based international order in place of brute force international politics. It was established by the Council of Europe to protect fundamental rights and freedoms across the continent. The European Court of Human Rights (ECtHR) was established by the ECHR to enforce the rights guaranteed in the Convention. 

Drafted largely by British lawyers in the aftermath of World War II, the ECHR has strong British roots, with Winston Churchill being a key architect. It aimed to enshrine a “never again” commitment to prevent the atrocities seen under fascist regimes. Since then, it has protected people in the UK from torture, unlawful killing, slavery, and arbitrary detention. It also safeguards freedom of speech, religion, assembly, and privacy. Existing to safeguard all of our rights, leaving this Convention risks the rights of all of those who live in the UK.

The ECHR is not part of the European Union. It’s a separate legal framework under the Council of Europe, of which all 27 EU countries are members, but so are others, including post-Brexit Britain.

A country can leave the Convention by formally denouncing it, but it would likely have to also leave the Council of Europe, as the two are dependent on each other.

But only two countries have ever left the ECHR.

Russia’s ECHR expulsion

Russia was expelled from the Council of Europe in March 2022, following its invasion of Ukraine, which ended its membership in the ECHR. Greece withdrew from the ECHR in 1967 under its right-wing military dictatorship, a regime marked by the suspension of civil liberties, widespread censorship, and the jailing, torture, and exile of political opponents, but was readmitted in 1974 after democracy was restored.

Ed Davey, leader of the Lib Dems, who have long opposed right-wing calls to leave the ECHR, noted that Russia remains the only country to have withdrawn from the Convention.

“Kemi Badenoch has chosen to back Nigel Farage and join Vladimir Putin,” he said, adding “this will do nothing to stop the boats or fix our broken immigration system.”

Yet in the summer, Davey, who fought a general election on a promise to cancel Brexit, suggested a different position, saying he wouldn’t be opposed to rewriting the Convention. “If you could do it collectively, working with the court, with European colleagues, yes, one could look at that,” he said. This suggests that there is a much wider perception that it is important to periodically revisit any historic international settlement to test its validity in current circumstances which is, of course, a long way from what the right are looking for. 

What about Labour?

Labour, meanwhile, is, typically, treading a far more cautious path. Rather than challenging the right’s framing of the issue, the party is focused on reviewing how the ECHR is interpreted by the courts and even floating the idea of amending it. Keir Starmer  told the BBC he doesn’t want to “tear down” human rights laws, but does support changing how international law is applied to prevent unsuccessful asylum seekers from blocking deportation.

It’s classic Starmer, the former barrister who edited a textbook on European law in 1998, trying to avoid alienating voters on the right while clinging to progressive credibility.

And Labour’s positioning on the ECHR has grown more complicated over the past year. In March, then-home secretary Yvette Cooper said the party was reviewing how the Convention was being interpreted by the courts, particularly Article 8 concerning the right to family life, and how it was being applied in immigration cases. 

A few months later, two ambitious Labour backbenchers, Jake Richards and Dan Tomlinson, joined the chorus, penning a joint article in the Times, calling for “reform” of the Convention to deport more foreign criminals.

Nigel Farage claims that he has changed the terms of the debate, that the liberal establishment is panicking because of his campaign against the ECHR.

Though this is perhaps a bit naïve – or hopeful – from Farage. It is certainly a wild over statement of his influence. Nothing new in that though.

In May, nine EU leaders, led by the far-right prime ministers of Italy and Denmark, published an open letter to launch an “open-minded conversation” about the “interpretation” of the Convention.

It’s safe to assume, that the open letter from Giorgia Meloni and Mette Frederiksen, the latter having taken a hardline stance on immigration, outflanking parties traditionally to the right of her Social Democrats, was not prompted by Reform’s success in British opinion polls. At the end of the day, we all know that any changes to current legal frameworks motivated by anti-immigrant sentiments, will look very different from those which proceed on the basis of a shared humanity.   

Would leaving ‘stop the boats’?

In the UK, there is also the Human Rights Act, which means ECHR cases can be dealt with by its own judges.

A University of Oxford study by the Bonavero Institute for Human Rights found that fewer than 1% of foreign criminals appealing deportation in the UK succeeded on human rights grounds. When cases reached the ECHR, most were thrown out.

Lord Sumption, former Supreme Court justice, says the ECHR is “certainly an additional difficulty, but not as great a difficulty, as is suggested.”

The real challenge, he told the BBC, is “finding a place which will take them [deportees] and which is not unsafe,” alongside obligations under the Refugee Convention, which requires the UK to assess asylum claims and grant rights to those who arrive, “even if they got here illegally.”

The cost to human rights

UK in a Changing Europe warns that leaving the ECHR, would strip individuals of a final avenue for justice when domestic courts fail, and remove international scrutiny of Britain’s human rights record. The Belfast/Good Friday Agreement also requires the ECHR to remain part of Northern Ireland law, and withdrawal would breach the agreement and risk destabilising the peace process, damaging relations with Ireland, the EU, and the US.

And as Professor Vernon Bogdanor of King’s College London notes, both the ECHR and the 1951 Refugee Convention protect asylum seekers from being sent to countries where they risk persecution. “Would anyone wish to deport women to Afghanistan or dissidents to Iran?” Even Farage seems to have had second thoughts on that one after initially seeming to suggest that women and children could be returned to Afghanistan.

Human rights lawyer Harriet Wistrich warns that leaving the ECHR would undermine vital protections, such as Article 2, the right to life, which enabled inquiries like the Hillsborough inquests to expose state failings. “If we withdraw fully… it’s those rights that are going to suffer,” she says.

Yet hostility to the ECHR is becoming a new badge of toughness on immigration. As Dr Alice Donald, professor of human rights law at Middlesex University, observes, “calls for withdrawal vastly overestimate the marginal effect that the ECHR has on immigration decisions.”

We should have learned from Brexit, which weakened Britain in every sense. Now the same voices want to abandon the ECHR. We know where that road will lead.

Gabrielle Pickard-Whitehead is author Right-Wing Watch

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