Dominic Grieve QC is a former Attorney General and MP for Beaconsfield.
As the Conservative Party leadership election reaches its climax, there are calls for the UK to leave the European Convention on Human Rights (ECHR).
This would result in the UK leaving the Council of Europe and ceasing to participate in the work of the European Court of Human Rights (ECtHR) where it has been a leading presence. It is suggested that we should have a much more limited and purely domestic British Bill of Rights instead.
In the 1940s, Conservative politician Sir David Maxwell Fyfe promoted our adherence to the ECHR. In the 1960s, Conservative MP Terence Higgins advocated for the right of individual petition to the ECtHR to protect against potential Labour government restrictions on freedom and helped achieve this change. Before the Human Rights Act, there were discussions on having a separate homegrown Bill of Rights. No one suggested then that we should abandon the ECHR altogether.
Under David Cameron, the Conservative Party’s stance on the ECHR started to shift. Cameron sought to repeal the Human Rights Act and replace it with a British Bill of Rights which might limit the way some rights under the ECHR were interpreted in our courts.
Theresa May left the issue alone. But it then resurfaced under Boris Johnson, before Dominic Raab’s Bill of Rights was dropped. The fact that no change took place reflected the muddled thinking that you could have a domestic Bill of Rights that differed from the ECHR. As I explained when I was Attorney General such an arrangement will not work.
Recently, the ECHR has been blamed for the Government’s failure to implement the Rwanda scheme and this is now a major source for calls that we should leave it altogether. However, the 2023 Supreme Court ruling showed that the UK’s obligations under the Refugee Convention and domestic laws were the key factors.
The debate around the irregular migration crisis has become oversimplified. Leaving the ECHR is not the panacea many believe it to be. In her bid to become the next Leader of the Conservative Party, Kemi Badenoch stated, “We need to stop blaming the EU or international agreements and start fixing problems here ourselves,” and “If we left the ECHR today, I don’t think we’d be deporting anyone any faster.” She is right.
There are ways to address migration that don’t require leaving the ECHR. For example, France and Italy, both ECHR signatories, grant 28 per cent and 48 per cent of asylum claims, respectively. The UK, by comparison, grants 76 per cent.
Rishi Sunak’s government successfully negotiated a returns agreement with Albania, resulting in the removal of thousands of migrants. But at present many other irregular migrants whose asylum claims are rejected are not removed because their countries of origin will not take them back. According to the Migration Observatory, of all asylum applications submitted between 2010 and 2020 that were refused, around 41 per cent had resulted in a return from the UK—whether enforced or voluntary—by 30 June 2022. The failure to deport promptly has nothing to do with the ECHR or the HRA.
What is missing from the debate is a willingness to consider the repercussions of leaving the ECHR.
Leaving the Convention would have serious constitutional consequences. The Convention is embedded in the devolution settlements of Scotland, Wales, and Northern Ireland. These could be overridden but would be likely to face strong opposition, particularly in Scotland, fuelling calls for independence.
It would undermine the Good Friday Agreement (GFA) and threaten peace in Northern Ireland. The ECHR is integral to the GFA, which mandates the British government to guarantee its enforceability in Northern Irish law. Exiting the ECHR would breach this commitment, destabilising Northern Ireland’s political balance.
This could provoke legal and political challenges, not only from the UK but also from the Irish government and international actors like the United States, which played a role in brokering peace. Suggestions there might be ways to wriggle around this are nonsense.
The UK’s departure from the ECHR would also harm its international reputation. Comparisons with countries like Russia and Belarus, which are not signatories, would weaken the UK’s credibility in addressing global human rights abuses. It would further isolate the UK from European allies and reduce its influence in global forums like the United Nations and the Commonwealth.
To address issues like migration, organised crime, and secure borders, cooperation with European partners is essential. This includes policing, judicial cooperation, and information sharing, all covered in Part Three of the Trade and Cooperation Agreement (TCA) which regulates our post-Brexit relationship with the EU.
Part 3 is based on respect for the ECHR, and its termination would have serious consequences for both the UK and the EU. Extradition processes would become more complicated, potentially allowing criminals to escape justice. The UK would lose access to key databases like Prüm, which includes DNA, fingerprints, and vehicle data, as well as Passenger Name Records (PNR) and criminal records.
Cooperation with Europol and Eurojust—two key institutions for tackling transnational crime—could be significantly reduced, leaving UK agencies with fewer resources to address these serious threats. If the TCA collapsed there would be severe economic cost to us.
Given the minimal gains and the significant risks of leaving the Convention, when Robert Jenrick claims, “It’s leave [the ECHR] or die for our party,” the reality is the opposite. Poor policymaking masked by shallow rhetoric is a much bigger threat.
