This article is taken from the June 2025 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £25.
One of Sir Keir Starmer’s first gestures when he became prime minister was to declare “We will never withdraw from the European Convention on Human Rights” to the leaders of Europe assembled at Blenheim Palace. This was where, as he reminded everyone, one of “the chief architects of the Convention” had been born (never mind that Clement Attlee was the man who took the UK into the ECHR and that Churchill’s support for the idea had been very modest).
Not a year on, and there are signs that time in office has made the Prime Minister and his party somewhat more pragmatic.
Withdrawal is still not on the table, at least to the PM; but in the new white paper on immigration, the government promised to limit the use of Article 8 in immigration cases using primary legislation.
Meanwhile, New Labour grandee Jack Straw, followed by several Red Wall Labour MPs, suggested that withdrawing would not be a catastrophe.
The mood has shifted elsewhere too. When a middle of the road Times columnist such as Emma Duncan is calling for amending the Human Rights Act (HRA) and derogating from parts of the Convention, ECHR scepticism has well and truly entered the mainstream.
After a recent Policy Exchange event on the ECHR, Sebastian Payne reported that at least three former home secretaries have changed their minds and are backing withdrawal from the ECHR, although as there are 17 living former holders of the office, the number is made proportionately less impressive.
Some are clamouring for reform instead of withdrawal, and some other European countries are considering it. A leaked letter from the Danish and Italian governments claimed that the European Court of Human Rights makes it difficult to “make political decisions in our own democracies”.
Protocol 14 of the Convention, which came into force 15 years ago, made it easier to reject vexatious cases whilst Protocol 15, which went live in 2021, added references to the margin of appreciation and subsidiarity to the preamble and restricted access to the Strasbourg court at the margins.
The problem is decisions by judges who are keen to invent new rights
The case against reform is that it does not work. Amending the preamble has not, as near as anyone can tell, affected the outcome of any case before Strasbourg. The problem is not vexatious claims, as much as it is vexatious decisions by judges who are keen to invent new rights.
Worse yet, it is not clear how a textual amendment — for all amendments to a written text are necessarily written — can override the doctrine of the living instrument, under which the Strasbourg court expands the Convention in any direction it fancies.
For the Strasbourg court to change course would require a substantial change in its complement. But this looks an uphill battle. In the recent KlimaSeniorinnen v Switzerland case, only the British judge, Tim Eicke KC, voted against the ludicrous Swiss female retirees who argued their ECHR rights were being violated by the Swiss government’s refusal to take measures they considered adequate against global warming.
In an average year, anything from four to six judges are elected; there are 46 judges in total (one per member state). Even if a handful of countries decide to put up small-c conservative jurists for election (each state sends a shortlist of three from which all states elect one judge), they would still not be able to change the ideological makeup of the Court.
Of course, there is also the British bill of rights, an idea which has been floated regularly for decades, and which even got so far as being introduced as an actual bill in 2022, before it fell dead, along with Dominic Raab’s political career.
The problem with a British bill of rights has always been that, even if it replaces the HRA, the British domestic incorporating instrument of the ECHR, the underlying Convention remains unaffected. In other words, it would amount to putting some lipstick on the jurisprudential pig that is the Convention as it exists today.
All of which means that, if you are a human rights lawyer who championed the ECHR’s incorporation into UK law via the HRA like Sir Keir, then you are in a very awkward situation. Leaving the ECHR would also kibosh his much hoped-for reset with the European Union, which has made the UK’s commitment to the ECHR a prerequisite.
That is before even mentioning Northern Ireland and the Belfast Agreement, which seems to many to guarantee UK membership of the Convention.
On the other hand, the Prime Minister has so far displayed a remarkable degree of ideological flexibility: one only needs to read the platform he ran on to become Labour leader to see how much he has shifted in terms of ideological leanings from his early days in politics.
At the end of the day, if Starmer cannot resolve the issues that are affecting the country, he will not remain in Number 10. Whether this takes him all the way to withdrawal from the ECHR remains, of course, to be seen.
