Leaving the ECHR Won't "Take Back Control" - It Will Hand Your Rights to Politicians

The Myths are Seductive, The Reality is Very Different - Without the ECHR Your Freedoms Rest On Whichever Home Secretary Wakes Up Grumpy

We all know the outrage calendar - the one that seems to guide the ebb and flow of what, exactly, we as good, normal people should be concerned about. Whether it's Poppy Season, which looking at my calendar should be up next, or "THEY'RE CANCELLING CHRISTMAS!" being just around the corner after that, it's all become so incredibly, tediously predictable.

I'm at the point now where I could more than likely just write all my posts for the year in December, schedule them to come out to coincide with the approximate time for being angry at something, and I'm 95% confident they would still work to dispel misinformation.

One of the more recent additions, dating back to circa 2022, is the period from the end of August to around mid-November, when calls begin for us to leave the ECHR. It's as though a combination of the heat of August and parliament's closure causes politicians and political commentators to go completely moggy.

Speaking of moggy things, if you’ve been scrolling X over the past 48 hours, you’ll have seen Annunziata Rees-Mogg, the living proof that having a posh accent does not equal the intelligence that people who say “haych” for “h” would like you to believe they have, spectacularly misunderstood the difference between the HRA and the ECHR - and she is not alone.

Which is why, even after a long day at work, I am here, tip-tapping away, reading up on case law¹, because, yet again, the sheer misinformation swirling around the ECHR is mind-boggling.

What the ECHR Actually Is

Image Credit: Bundesarchiv, B 145 Bild-F080597-0004 - Reineke, Engelbert

Before we start discussing the misinformation and mythology, it’s worth establishing the basics about the ECHR.

No, the ECHR is not the European Union - something which seems to escape many people that are calling for the divorce. It predates it by a fair bit, with the Council of Europe having been founded in 1949, well before the European Economic Community (the EU’s predecessor) which was founded in 1957. As it stands, it has 46 members, including countries such as Turkey and Switzerland (neither of which is an EU member, if we’re keeping count).

The Convention itself was drafted in 1950, with the UK being very involved through both Churchill’s² advocacy and support from Atlee’s government at the time.

What the ECHR does is establish fourteen fundamental rights - things like the right to life, prohibition of torture, the right to a fair trial and freedom of expression. All pretty good things, I think we all as human beings can agree, yes?

Where the HRA comes in, and which seems to have confused Annunziata and co, is that this is the mechanism that makes sure these rights are enforceable through domestic courts in the UK, i.e. you don’t have to schlepp all the way to Strasbourg to bring a case if, say, the UK government deprives you of something like your right not to be thrown into jail because the government of the day found what you were saying to be uncomfortable.

It’s all relatively basic and straightforward, yet, somehow, people are still able to twist and manipulate the subject into something that would make Orwell go “slow down a second here”.

So in the spirit of public duty, here are the most common ones I’ve come across both over the past 48 hours, and when I’ve had to write about it before:

“We Already Had Rights Before the ECHR”

I will admit - this is a slightly new one, and while it contains a grain of truth, it’s mostly wrapped in a lot of very digestible and delicious fallacy.

Yes, Britain indeed had some rights and protections before the institution of the ECHR. The ones most often quoted are Magna Carta,³ the Bill of Rights 1689 and various other common law bits and pieces that served to plug something up at the time. The problem here is that these protections were pretty patchy, piecemeal, and very importantly, subject to parliamentary repeal.

What happened with the ECHR is that it consolidated all of those bits and bobs together and created a comprehensive system of protections - a blanket of rights that covers all the essential aspects we as human beings value.

Somewhat more importantly, though, pre-ECHR rights were almost completely at the whims of parliamentary sovereignty. Parliament could, if it chose to do so, repeal Magna Carta tomorrow - and indeed most of it has been repealed since the 1860s⁴. The Bill of Rights of 1689 could be very easily abolished with just a simple majority.

The ECHR has created a set of rights that have an external guarantor, namely the previously mentioned European Court of Human Rights in Strasbourg. Which is kind of the point. It basically means that your rights don’t live or die at the whims of a parliamentary majority or at the mercy of an especially annoyed Home Secretary on a Tuesday morning. It’s a backstop. A safeguard. It’s a referee standing just a little bit outside the scrum who can intervene when something especially egregious happens.

You are more than welcome to chant Magna Carta until you’re royal blue in the face, but without the convention, those protections will ever only be as good as the political mood of the day.

“But It’s Just A Treaty Anyway - We Can Leave Whenever We Want”

This is a line that we’re going to see coming up not only when it comes to the ECHR, but all the other pieces of legislation that, in all honesty, make a civilised country civilised. Many of the usual suspects, on the back of Reform UK’s pageantry as policy event earlier this week, have now got things like the UN Convention Against Torture, the 1951 Refugee Convention and a whole host of other laws squarely in their angry, slightly baffled line of sight.

The argument here basically boils down to “If it’s just a treaty, well, that’s optional.” Except that’s not really true. Treaties, despite what people like Dick Tice might be saying on his seventeenth news round for the day, create binding obligations. That’s kind of the whole point. The UN Convention Against Torture obliges countries to not return people to countries where they may face torture. The Refugee Convention brings in the concept of non-refoulement - not sending people back into a situation where they may be in danger. And we signed up for them, agreed with the concepts and ratified them, along with most of the democratic world.

Could the UK withdraw? Absolutely.

The thing is, though, that a withdrawal like that would absolutely carry consequences. It would erode trust with our allies, it would weaken our alliances, and it would instantly isolate us diplomatically and put us in the company of some very unappealing bedfellows (Belarus and Russia, for example).

What the commentators and talking heads are nattering on about when leaving the ECHR (or the Torture Convention) is really that “we don’t want rules that stop our government from behaving badly”. Which is all good and well, except one day there might just be a government that finds your existence inconvenient, and then you’re left with rather few options.

Let’s not do that.

“Leaving the ECHR Won’t Affect Northern Ireland - You’re Just Scaremongering”

This one is currently doing the rounds in a few places. The issue here is that it isn’t “Scaremongering” or “Project Fear” - it’s a pretty likely thing to happen because the ECHR is literally one of the cornerstones of the Good Friday Agreement⁵.

The GFA, signed in 1998, is rather a bit more than just a handshake deal - it’s a full-on international treaty lodged with the United Nations, and sitting right there in the text is a commitment:

The UK government agreed to ensure that the ECHR would be directly enforceable in Northern Ireland. It was essentially the cornerstone that brought all parties involved, including the nationalists, to sign up for peace.

Now, imagine the House of Commons, in a fit of pique, decides to rip that up and walk away from the ECHR. What happens next? You’ve just very blatantly breached the GFA. You’ve completely undermined one of the key assurances that ended over thirty years of deadly conflict, and you’ve just handed extremists on both sides a lovely, ready-made grievance:

“Britain does not honour its promises or commitments.”

It doesn’t matter if you try to fudge things through with a “British Bill of Rights” (which we’ll come to later) - the GFA is built on an external standard, not whatever a government of the day decides counts as right, but an agreed international benchmark.

People telling you that leaving the ECHR wouldn’t have consequences for Northern Ireland either do not understand its importance, or they’re not being entirely truthful.

“The ECHR is just a Criminals Charter”

This is the myth that has been flung around for ages now, and people have been doing so because it taps into two things:

Fear and Anger.

And it’s another one that’s not particularly true. The reality is that the ECHR protects everyone, and some of the biggest beneficiaries have been British citizens.

For example:

• Hirst vs UK: This case wasn’t about foreign criminals, but about voting rights, and the ruling forced parliament to actually address democratic rights for incarcerated people rather than letting it lie in the “too difficult box”.

• Sunday Times vs UK: The UK government at the time did its very best to ban reporting on the Thalidomide Scandal by using contempt of court laws. The ECHR found that the actions by the government violated freedom of expression, and, thanks to that, British families finally got justice against a pharmaceutical company that had harmed children.

• Smith and Grady vs UK: This case was pretty monumental. In the 1990s, the MoD hounded out two members of the armed forces, Jeanette Smith and Graema Grady. They were intrusively investigated, interrogated and, ultimately, dismissed for the crime of not being heterosexual. They won their case and the government was forced to overturn the ban on homosexuals in the military.

These are just three of hundreds of cases that have been brought to the ECHR, all of which have in some way improved the lives of people in the UK going forward. The painting of the ECHR as a nebulous, abstract foreign body dishing out goodies to migrants or hardened offenders is just complete nonsense.

It’s a framework that has repeatedly defended British families, British journalists and British soldiers, and has had wide-ranging impacts on ensuring that you’re able to live your life with an enforceable guarantee of dignity and protection.

Which brings us to the final myth - which is really the ur-myth behind all of them.

“We Can Just Replace it With a British Bill of Rights and be Done With All This European Muck”

It sounds so easy, doesn’t it? Who in the world wouldn’t want their rights tailored just for them, like a lovely bespoke, gaudy Union Jack-themed Savile Row suit?

Except that any right that can be rewritten or repealed by a domestic government with no oversight isn’t really much of a right at all - it’s a privilege. And the tricksy thing about privileges? They’re very much conditional.

This is the true strength of the ECHR. By setting rights against an international, external benchmark, it forces every government that the UK might have, regardless of how large its majority, to recognise that there are, in fact, limits to what it can and can’t do to its citizens.

All of the rights we’ve touched on in this piece - freedom of speech, your right to protest, your ability to love who you want without the government dictating whether that’s appropriate - those aren’t baubles handed down by ministers in Whitehall for you being a terribly good little pleb, they’re guarantees with someone outside of the framework and who can neutrally adjudicate.

The moment you take that neutrality and external force away, you’re left trusting people like Nigel Farage, Robert Jenrick, Suella Braverman, or whichever grievance-peddler of the day happens to be in power to decide how much freedom you get (or don’t get) to keep⁶.

Would you trust them with that? I don’t even trust the Labour government with that.

The Core of the Argument

And that’s the question at the core of this debate for me.

The repeated calls from all the same voices to leave the ECHR are plainly not about sovereignty, Brexit 2.0 or some weird, noble assertion of national grit - they’re about removing the checks that stop governments from abusing their power. The language of “restoring justice” being flung around left, (far) right and centre is no more than marketing fluff for something that is much more insidious - stripping away the safeguards that protect all of us.

I’m not naive - or no more naive than most other people. There’s a very good reason the calls for leaving the ECHR get traction - it’s because they tap into anger about immigration, about housing shortages, about communities that have been under pressure for going on 15 years now. They very cynically weaponise the concerns, frustrations and unhappiness and point them, as ever, at the wrong target.

The sad truth remains that it will always be easier to blame a treaty, a migrant or a tofu-eating lefty for the mess that’s developed because of decades of underfunding and neglect by numerous governments, corporate greed or a broken housing market.

The troubling part of this is though that every time this argument rolls around on the outrage calendar, the conversation gets coarser, the arguments louder and the political class grows more and more silent. Labour, the party that I lent my vote to last year, is nowhere to be seen. People that I have admired for years - Cooper, Phillips, Starmer, Rayner - all of them know exactly why the ECHR is so important, yet they’re treating it like a hot stove that they dare not touch. Instead of mounting the robust defence that I would expect from people who have said for years how important human rights are, they mutter about “legitimate concerns” and let the far right continue to set the framing on this subject.

Where we are at this moment in time, all I’m seeing from them is cowardice and zero strategy, and they need to do better. They need to do better damned quickly.

Not Brussels. Not Optional. Not Replaceable.

To end this extended ramble, let me reiterate:

The ECHR is not a plot that’s been cooked up in Brussels.

It is not a criminal charter.

It is not optional.

It is not scaremongering to say that leaving it would drastically undermine peace in Northern Ireland.

It is not replaceable by a “British Bill of Rights” cooked up by the same people who confuse it with the HRA in public.

What it is, is the foundation stone that protects you from your government the day it decides to go too far.

That’s why this subject matters and why I’ve gone on for thousands of words about it again. That’s why I keep tip-tapping away long after I should have poured myself a glass and shoved myself on the sofa for some “Below Deck Down Under”. If we let these myths fester and grow, if we let the outrage calendar dictate our future we may end up waking up one day in a place where rights are whatever a Home Secretary says they are that day, and where justice bends to whoever shouts the loudest or who has the most X followers.

And the moment that happens, we won’t be taking back control - we would have lost it entirely.

1. I am a very fun man to be around.

2. You know Churchill - chap with a cigar. Tories are constantly semi-aroused by the man. The “we shall fight them on the beaches” guy. Also the “maybe human right’s are quite a good idea” man.

3. Often referred to as, among other things: Mango Carter, Magna Charter, Magma Carta… the list goes on.

4. For anyone wondering which laws are still in place from Magna Carta, it’s the one about the City of London keeping its liberties. Unless you’re a medieval alderman, you. may want to rethink your rallying cry.

5. If the fancy takes you to tell people in Belfast that the ECHR is “optional” best you be wearing your best running shoes.

6. Not only that, but if the British Bill of Rights are anything like British trains, it’ll be three hours late, cost twice as much and be quietly cancelled at short notice.