Leaving the ECHR: A Realistic and Viable Proposal? 

By: Jane Richards

Last month, Prime Minister Rishi Sunak told The Sun’s Harry Cole that Britain would leave the European Convention on Human Rights (ECHR) if it would help to prevent the arrival of small boats of asylum seekers. Sunak said, “I believe that border security and controlling illegal migration is more important than our membership of any foreign court.” Indeed, rhetoric from successive Conservative Prime Ministers regarding leaving the ECHR is not new. However, Sunak’s statements can now be analysed in the broader context of comparable policy and law. Such manoeuvring has significant implications in eroding human rights in the UK, and, somewhat ironically, may also come to erode Britain’s democratic processes of government. 

In issue is if whether Sunak’s suggestion that we might leave the ECHR is either legally or politically viable. In short, while possible, leaving the ECHR is not without significant legal obstacles. More broadly, the legal obstacles to be overcome would require significant political impetus, necessitating significant domestic legislative change, all of which seems extremely unlikely. 

1.      The legal process of withdrawal

Under the UK’s constitutional framework, the executive’s residual foreign affairs powers, vested in the royal prerogative, entitle a government to withdraw from any international treaty which the UK has previously entered into. At the same time, in order to withdraw, Article 58 of the ECHR enables state parties to denounce the Convention. Prima facie, Sunak’s government could then denounce Britain’s membership of the ECHR at any time. However, it is arguable that within the UK, mere denouncement would have limited legal effect. The Brexit case, R (Miller) v Secretary of State [2017] UKSC 5 clarified some relevant limits on the exercise of the executive’s power to withdraw from certain treaties, some of which will likely apply in this case. Confirming the immutability of the 1688 Bill of Rights, the Supreme Court reaffirmed that the executive is answerable to the UK Parliament, and that any exercise of a government’s powers must be consistent with both domestic legislation and the common law. In the context of Britain’s membership of the ECHR, because the ECHR has been incorporated directly into domestic law via the Human Rights Act 1998 (HRA), the executive cannot exceed its power by unilaterally repealing domestic legislation which Parliament has brought into force. In other words, under the separation of powers doctrine, Britain’s dualist constitutional structure prevents the executive from taking any action that displaces parliamentary sovereignty. This means that the repeal of the HRA would need to be undertaken by Parliament; the royal prerogative only applies in situations that are not covered by legislation. As reasoned by the Supreme Court in Miller, the executive cannot take action which would prevent the effective operation of legislation that has been willed by Parliament because “ministers cannot frustrate the purpose of a statute”. 

From a human rights perspective, there are further barriers to any expansion of executive power in this way. The Court in Miller held that the executive cannot exercise its prerogative powers in situations where citizens’ rights will be curtailed. It is only open to Parliament to legislate for the curtailment of human rights. Withdrawal from the ECHR would almost certainly erode human rights protections in the UK. It is the substantive rights protections offered by the ECHR that is significant in this context. In the protection of individuals’ rights, judgments against the UK have been granted to keep pace with evolving conceptions of minority identities, and to safeguard the vulnerabilities of those who have historically been under-protected. Recourse to the European Court of Human Rights (ECtHR) for rights protection operates as a measure of last resort once all other domestic avenues have been exhausted. Withdrawal from the ECHR would mean that an individual in the UK would no longer be able to take their claim to the ECtHR, leaving gaps in human rights protections. 

Further, and despite Conservative Party rhetoric to the contrary, it is arguable that membership of the ECHR reinforces specific human rights which are fundamental to British values, such as democracy, the rule of law, individual liberty, and respect and tolerance – as any school or college website will make clear. The protection of minority rights against majoritarism, enforceable through the mechanism of Britain’s ECHR membership is thus constitutionally entrenched. Denouncing ECHR membership to erode human rights is thus an unconstitutional exercise of executive power. 

There are further legal barriers to the UK’s withdrawal. Firstly, because of the way the ECHR has been incorporated into the Scotland Act 1998, the Wales Act 2017The Northern Ireland Act 1998, and especially the Belfast/Good Friday Agreement in Northern Ireland, the structure of devolution would require a significant overhaul. There is also subsidiary legislation in those three territories which would need to be repealed. Westminster would thus require not just agreement, but significant legislative change by those three parliaments to withdraw from the ECHR. Denouncement would similarly require withdrawal or significant renegotiation of the Trade and Cooperation Agreement between the EU and the UK. 

Thus, despite any Sunak pronouncement, withdrawal from the ECHR falls outside the scope of executive authority. And while it does not fall within the scope of judicial review to overturn prerogative decisions, as Miller demonstrated, a legitimate legal challenge may be grounded in the Court’s constitutional and legislative powers of judicial review. 

2.      A political impossibility? Rhetoric vs reality. 

The increase in rhetoric that leaving the ECHR will somehow operate in defence of Britain’s borders is arguably grounded in a misrepresentation of Strasbourg’s influence in the UK. The real effect of leaving would be geopolitical consequences which raise further human rights concerns that would also need to be overcome. 

Restricting immigration – arguably Sunak’s key target – would be effective only to the extent that it would see the removal of emergency interim measures of the sort that prevented the take-off of planes bound for Rwanda in 2022. Rule 39 interim measures are a measure of last resort and are only applied in exceptional circumstances where there is an “imminent risk of irreparable harm”. May 1st’s Safety of Rwanda (Asylum and Immigration) Act 2024 attempts to circumvent legal challenges under the ECHR to Rule 39 injunctions, but breaching the ECtHR’s rulings in this way is likely to be subject to challenges grounded in Britain’s obligations under international law. For example, even without the ECHR, the UK is still bound in international law to abide by the UN 1951 Refugee Convention’s obligation of non-refoulement. 

Putting aside Britain’s refugee policy, which has come under increasing criticism by the international community, executive attempts to withdraw from the ECHR would put Britain out-of-step with evolving international practice in terms of treaty withdrawal. Though not mandated in international law, it is becoming increasingly common for treaty withdrawal by state parties to be undertaken through parliamentary mechanisms. Anti-democratic measures, which usurp the will of Parliament by substituting it with the will of the executive, draw into question Britain’s geopolitical standing as a champion of global democracy. Actively denouncing its commitment to human rights in this way would likely further erode Britain’s global image, especially as we would join only Belarus and Russia in not being party to the ECHR. 

In reality, there has not been an ‘overreach’ by Strasbourg into Britain’s domestic affairs. Since the introduction of the HRA, it has become increasingly rare for a ECtHR ruling to be made against the UK; in 2022, the UK was among the lowest of all state parties to be found to be in violation of the ECHR. The UK is similarly one of the leading state parties in terms of the implementation of ECtHR judgments. Withdrawing from the ECHR will remove last resort safeguards in respect of human rights protections, but it will not fundamentally alter the UK’s ability to self-govern. 

3.      Conclusion: Possible but unlikely 

Brexit showed that withdrawing from international treaties is possible, while the Rwanda Bill has demonstrated ways of eroding human rights protections that are legally compliant. However, both Brexit and the Rwanda Bill have demonstrated that these processes are likely to be long and complicated. As such, any attempt to leave the ECHR will likely require significant political impetus. With an election pending, and particularly given the split in Sunak’s own party over this issue, giving effect to the rhetoric will not be straightforward. Of course, it is always open to Sunak to buckle down before the next election and to denounce the ECHR, but the legitimacy of him doing so is questionable at best. 

Jane Richards. 

Jane Richards is a lecturer in international human rights and criminal law at the University of York. She is a fellow at the Centre for Criminology at the University of Hong Kong.

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.