No aspect of the UK constitution is more contentious at present than our membership of the European Convention on Human Rights (ECHR). It has been portrayed as an obstacle to the deportation of foreign criminals and in attempts to curb illegal migration. The ECHR is an international treaty drafted in the aftermath of the Second World War and the Holocaust to insure against repeated human rights atrocities. It provides legal protection for an array of rights including the prohibition on torture and inhuman or degrading treatment, the right to freedom of speech and the right to privacy and a family life. Unlike most European democracies, the UK does not have a constitutional document which guarantees the protection of individual rights. This has meant that over time, the ECHR has become the UK’s main framework for the protection of rights at the international and domestic levels. In 2000, the Human Rights Act 1998 (HRA) came into force, which enabled people to take public authorities to court for breach of the ECHR.
Legitimate concerns have been expressed by politicians and lawyers of the left and right alike as to whether the UK should remain in the ECHR, and separately whether the UK’s human rights regime needs reform. The purpose of this blog post is not relitigate those concerns, but to explain how the ECHR works in practice and to debunk some famous and common myths.
Some background
As originally drafted, the Convention guarantees 14 different rights, but it has been amended to include additional protocols. Not all states are party to every ECHR right and states choose whether to ratify newer protocols. For instance, the UK has not ratified Protocol 4, which protects people from being expelled from their country of nationality. Not all ECHR rights are treated equally. Some rights are non-derogable which means that they are absolute and cannot be violated by the State under any circumstances. Non-derogable rights include the right to life (article 2) and the protection from torture, inhumane and degrading treatment (article 3).
The ECHR is enforced primarily at the domestic level, which makes proceedings in Strasbourg a measure of last resort. A study by the Equality and Human Rights Commission proves that the UK has “a very low rate of defeat in Strasbourg.” Between 1999 and 2010, nearly 12,000 applications were brought against the UK and the vast majority (97%) failed at the first hurdle. Merely 390 applications (3%) were declared admissible and of these applications, only 215 (1.8%) resulted in a violation against the UK. Compared to other European jurisdictions, the UK has a relatively strong record for ECHR compliance. In the year 2023, only 3 out of the 1,014 judgments made by the Strasbourg courts concerned the UK, and only one of these held that the Convention had been violated.
Myth 1) The ECHR was imposed on the UK by Europe
Perhaps the biggest piece of misinformation surrounds how the ECHR was born. The UK played a key role in drafting the Convention. In May 1948, shortly after the Second World War had ended, Winston Churchill, Francois Mitterrand of France and various other European leaders convened the ‘Congress of Europe’ at the Hague. They signed a declarationdeclaring their “desire” for a “Charter of Human Rights guaranteeing liberty of thought, assembly and expression as well as right to form a political opposition.” They also declared their desire for a “Court of Justice with adequate sanctions for the implementation of this Charter.” Drafting the Convention was held to be one of the most important first tasks of the newly-formed Council of Europe. The rapporteur responsible was the Conservative lawyer, Sir David Maxwell Fyfe, who served as Attorney General and Home Secretary under two Churchill governments. Fyfe played a leading role in producing the first draft of the Convention. He described it as a ”beacon” and “hope” to those who had been living in “totalitarian darkness.” At the time, scepticism toward the ECHR within the UK came from the political left. The Labour Prime Minister Clement Attlee sought to weaken negotiations about the Convention proposals during negotiations. Suggestions that the Convention was foisted on to the UK, or that it was the preserve of the political left, are misguided.
Myth 2) The HRA has given judges the power to overturn Parliament’s decisions
Another misrepresentation is that the HRA has empowered judges to overturn Parliament’s decisions. Here, Parliamentary sovereignty means that British judges do not have the power to strike down primary legislation. Indeed, each parliament has supreme legislative power – i.e. each iteration of MPs must be able to repeal any law enacted at any time. This means that it is difficult to entrench legislation or prevent an Act from being automatically overridden.
However, in order to ensure that the rights contained in the Convention would be guaranteed, a special degree of constitutional protection was required which resulted in the Human Rights Act conferring two unique powers on judges. Section 3 of the HRA requires judges to interpret and read all primary and secondary legislation in a way that is consistent with the Convention. This power of benevolent interpretation enables judges to prefer interpretations of legislation that are consistent with the ECHR over an inconsistent application. In extreme cases where this is not possible, section 4 confers upon judges the power to declare primary legislation “incompatible with a Convention right.”.
A judicial declaration of incompatibility is also nowhere as drastic as a strike down power because it does not invalidate the incompatible law. The making of such a declaration typically triggers a political process whereby Ministers and Parliament decide whether to keep or amend the incompatible Act. Under section 10, ministers have the power to remedy incompatible primary legislation through making a Remedial Order.
Myth 3) Albanian criminal’s deportation halted over his son’s distaste for chicken nuggets
Turning to myths on ECHR appeals, there is a tendency to emphasise trivial details mentioned by counsel and pretend they were vital in overturning Home Office decisions. In February of this year, for example, The Telegraph reported thatan Albanian criminal was not deported because his son disliked foreign chicken nuggets. In the actual case, the claimant was married to a British national and had two children, including a son with special needs including emotional dysregulation and sensory difficulties. Counsel relied heavily on evidence of the son’s dependence on his father, and his struggle to cope with mundane things, like foreign food. The First Tier Tribunal initially held that it would be “unduly harsh” to deport the claimant because of his children’s dependency on him, but this outcome was held to be irrational by the Upper Tribunal.
Myth 4) The HRA prevented an illegal migrant from being deported because he had a pet cat
The trend of deploying trivial factual details to make Convention rights seem laughable has existed for some years. In October 2011, then-Home Secretary Theresa May gave a speech to Conservative Party Conference claiming that the HRA had prevented the deportation of an illegal migrant because he had a cat, and a robber because he had a girlfriend. In the case about the cat, May was referring to an argument than had been by the illegal migrant’s lawyer as to why he should remain in the UK. The Home Office decision had been challenged on the basis that “inappropriate weight [had been] placed on the appellant having to leave behind not only his partner but also their joint cat.” The Immigration Tribunal judge ultimately allowed the migrant to remain in the UK as he was in a “partnership akin to marriage” with a British citizen, and at the time, it was Home Office’s own policy not to return those individuals. Obviously, the cat had nothing to do with the outcome.
Types of misreporting
The myths briefly covered in this post constitute different kinds of misrepresentation. The first myth was inaccurate, while the second was an exaggeration of how the Convention works at the systemic level. The third and fourth are perhaps more sinister because they distort the facts of decisions where the ECHR was relied on, both successfully and unsuccessfully.
In a comprehensive report about mispresentation and the ECHR, the Bonavero Institute for Human Rights identifies three types of mispresentation, namely, examples of a) reporting decisions that were overturned, b) reporting arguments that were rejected as if they were the basis for judicial decisions and c) misreporting the actual outcome of judicial decisions. This misinformation damages public trust in the legal system and prevents us from having a legitimate and reasonable debate about the future of the ECHR and the adequacy of the UK’s human rights framework as a whole.
It is inevitable that any robust human rights law will create difficult questions in cases involving deportation, immigration and criminality. That is because in any system where the rule of law is respected, rights are guaranteed equally for everyone, even the most morally depraved of individuals. This tension between public security and human rights must be confronted with honesty and intelligence – not with clickbait headlines which erode public trust in the integrity of our system.
Tasneem Ghazi.
Postscript – A list of contributions to the debate fromdifferent perspectives.
- Adam Wagner, ‘Introduction to the Human Rights Act’ UK Human Rights Blog accessible here
- A Donald et al, ‘Does the European Convention on Human Rights stop foreign criminals being removed from the UK?’ UK in a Changing Europe accessible here
- Alice Donald, ‘Written Evidence on Twenty Years of the Human Rights’ accessible here
- Joshua Rosenberg, ‘How the UK could Leave the ECHR’ A Lawyer Writes 6 October 2025
- ‘Collection of Opinion Pieces on Human Rights Act’ UKCLA accessible here
- J Wadham et al, Blackstone’s Guide to the Human Rights Act 1998 (8th edn Oxford University Press 2024) accessible here
- P Yowell et al, Parliament and Human Rights: Redressing the Democratic Deficit (Bloomsbury 2015) accessible here
- Conor Gearty, On Fantasy Island: Britain Europe and Human Rights (Oxford University Press 2016) accessible here
- Alice Donald and Philip Leach, Parliaments and the European Court of Human Rights (Oxford University Press 2016) accessible here
- Thomas Hickman, Public Law after the Human Rights Act (Hart 2011) accessible here
- Alison Young, Parliamentary Sovereignty and the Human Rights Act (Hart 2008) accessible here
- Edward Bates, The Evolution of the European Convention on Human Rights (Oxford University Press 2010) accessible here
- Keith Ewing and Joo Cheong Tham, ‘The Continuing Futility of the Human Rights Act’ Public Law [2008] accessible online via Westlaw
- K Ewing et al (eds), Sceptical Essays on Human Rights (Oxford University Press 2002) accessible here
- Francesca Klugg, Values for a Godless Age: The Story of the UK’s New Bill of Rights (Penguinn 2000) hardcopy here
Tasneem is a PhD student at the UCL Faculty of Laws. Tasneem previously completed the Barrister Training Course while working part-time as a research assistant at the Constitution Unit. In 2021, she interned at the Institute for Government and at the UK in a Changing Europe. Tasneem holds an MA in History from King’s College London, and an LLB in Politics, Philosophy and Law.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.