Britain has been on a slow-motion course towards the gravest constitutional crisis since 1689 for at least three decades now. At its heart lies, among other things, the Human Rights Act of 1998 (‘HRA’). What could possibly be the problem? The problem is not the notion of rights, certainly. The problem, from my observation of the discourse, seems to be rooted in the different conceptions of Britain as a sovereign State and as to what the proper conception of rights is. The debate in the House of Commons on withdrawing from the European Convention on Human Rights (‘ECHR’) encapsulates this debate perfectly. My object here is to evaluate the arguments in that debate and consider the crisis while doing so.
Since we are still party to the ECHR, I will begin by outlining the argument made by Sir Ed Davey, leader of the Liberal Democrats, in favour of it. That is, I will outline the argument in favour of the status quo before the argument for changing it. Obviously, I will strip the arguments on both sides of the rhetorical packaging their proponents wrap them in; I am concerned with truth, not party-political posturing. To me, the rhetorical wrapping in the debate, on both sides, sounded more like a distraction from the intrinsic weakness of the arguments made, than what rhetorical art should be, which is the final decoration making strong arguments all the more appealing.
Sir Ed makes three arguments in favour of the Convention and the HRA, which gives it domestic effect.[1] First, that the ECHR is a powerful and effective written instrument for the safeguarding “justice” towards of the citizens and for “protecting them from gross misconduct and unfair treatment”.[2] Relatedly, it is the principal guarantee of our constitutional rights and liberties, among which Sir Ed singles out the freedom of speech and assembly.[3] Sir Ed then posits that our adherence to the Convention is a “soft power” internationally in two senses, first in that it engenders confidence in our ability to uphold international law and, second, in that it ensures a just peace in Northern Ireland which cements our alliance with the Irish Republic.[4]
Let’s consider first the argument as to international influence and obligations, moving on to our direct consideration of the constitution in due course. Regarding influence, what precisely is the notion of “soft power”? It seems to me that when the term soft power is used generally and here by Sir Ed, it signifies influence held over other nations independent of force. Respectfully, Sir Ed’s argument is at its weakest when it invokes soft power. Power implies the ability to move. Yet Sir Ed cites no examples of how British adherence to the Convention specifically guarantees influence over other nations. By this I mean the securing of rights in Britain through the Convention specifically, and not the ordinary mode of securing rights in Britain before the HRA, which has been through the common law and the great statutory protections. These latter include the Petition of Right (1628), the Bill of Rights (1789) and cap. 29 of the Magna Carta (1297), alongside other instruments.[5]
Anyone even vaguely familiar with constitutional theory and the history of the constitution will know that the British constitution has been celebrated for centuries for its guarantee of rights and liberties. Voltaire in his Letters on the English written in 1734 is one example in a legion of others. It is an elementary error to posit that the late guarantee of rights in the Convention and even later enactment of the HRA gave Britain a reputation for being a bastion of liberty and bulwark of rights. Rather, it is the common law and statutory protection of rights alongside a culture of liberty at all levels of society, as Burke and Disraeli might describe it,[6] which has ensured this. Hence why I was perplexed when Sir Ed asserted that it is British subscription to the Convention which constitutes the achievement of, in his words, “people’s hard-won rights”.[7] He says that the Convention’s protection of rights is to Britain what the rights shielded by the US Constitution are to America.[8] The fact is that the rights under the Convention were already protected by the British constitution, either in the State embodying principles of individual liberty or autonomy in general (so, as negative protections) or in positive statements of law, either in cases, e.g., Entick v Carrington (1765) preventing unreasonable and illegal searches and seizures,[9] or in the great statutes mentioned above. The Convention constituted an achievement in rights protection by more clearly stating them, for sure, but because these rights were already substantially protected in Britain, its importance in our domestic constitutional development is very limited.
Indeed, Sir Ed’s invoking the American example undermines his own argument and, alas for so learned a statesman, betrays his ignorance of the American Constitution. For, the Founders of that great Republic looked to the common law and statutory protections of constitutional liberty in Britain when promulgating their own Bill of Rights, and not some aery, aethereal, abstract and unhistorical version of rights. Just consider Entick v Carrington again. That case, and not some model code of rights, is the direct, immediate and clear interpreter of the meaning of the Fourth Amendment of the US Constitution such that we may quite reasonably say that, in a sense, the US Bill of Rights is a step in the development of the rights of Englishmen, translated to the American context. Lest anyone dissent from what I say here, let me quote the US Supreme Court in Boyd v. United States (1886) to the effect of what I have said:
“Lord Camden pronounced the judgment of the court in Michaelmas Term, 1765, and the law as expounded by him has been regarded as settled from that time to this, and his great judgment on that occasion is considered as one of the landmarks of English liberty. It was welcomed and applauded by the lovers of liberty in the colonies, as well as in the mother country. It is regarded as one of the permanent monuments of the British Constitution, and is quoted as such by the English authorities on that subject down to the present time.
As every American statesmen, during our revolutionary and formative period as a nation, was undoubtedly familiar with this monument of English freedom, and considered it a the true and ultimate expression of constitutional law, it may be confidently asserted that its propositions were in the minds of those who framed the Fourth Amendment to the Constitution, and were considered as sufficiently explanatory of what was meant by unreasonable searches and seizures. We think, therefore, it is pertinent to the present subject of discussion to quote somewhat largely from this celebrated judgment.”[10]
I may be forgiven for myself quoting somewhat largely from Boyd, because it is typical of the sort of influence the constitution of Britain had on the formation of the US Bill of Rights. Background context may be brought for each of the amendments in the US Bill from English authorities, but for me to do so here would deviate too far from my argument. Let one example suffice for now. What this does is reinforce my argument that in Britain, the local constitutional mechanisms of common law and statute, coupled with a polity whose character supports liberty, have been the primary supports of rights. The Convention may be an enormous achievement for some nations on the Continent who, until the 20th century were unfamiliar with constitutional government, let alone liberty, but it is not so with us. Sir Ed’s argument seems to consider that our constitutional development worked roughly parallel to that of Continental countries, whereas our system itself bears greater affinities in its traditional principles to America, a nation which he ironically mischaracterises.
As regards Northern Ireland, the Belfast Agreement only requires the applicability of the Convention to Northern Ireland. The solution to Sir Ed’s conundrum may be simple. The United Kingdom need not withdraw from the Convention in international law for its effect to be limited domestically. Its domestic effect can be modified by an Act of Parliament interpreting the Convention in a more restrictive sense than the Strasbourg court has in areas concerning non-refoulment under Article 3 (risk of torture or degrading treatment) and deportation under Article 8 (right to family life). If the Republic of Ireland protests that removing the domestic effect of the jurisdiction of the Strasbourg Court is a violation, in its view, of the Belfast Agreement, the Human Rights Act may be repealed only for Scotland, and England and Wales, but retained, perhaps in a modified form, for Northern Ireland. This would, indeed, continue the internal divergence between Great Britain and Northern Ireland, first as regards the applicability of EU law, next as to the implementation of the ECHR. I suppose that if, in the future, the island of Ireland might be united in some form (whether wholly integrated or as a devolved government)[11] under the Republic, this would help integrate the Northern Irish legal system with that of Ireland. However, I need not concern myself with that uncertain hypothetical just yet.
A recent typical case, one which provoked a flurry in the news media,[12] is that of the anonymous Pakistani man ‘MH’ who was due to be deported following three convictions of attempting to cause a child under 16 to engage in a sexual act.[13] The Tribunal felt that, inter alia, his right to family life would be violated his deportation was prevented. Clearly the right to family life itself is not a problem, but what seems to be a problem is how the right is interpreted. For those seeking the reformation of human rights law, the rights need not be assailed because the interpretation given to them may be expressly restricted. In my view, this would require the court to not intervene as a matter of factual determination on the judgment of facts (not law) of the official immediately concerned in making a decision, for example, on deportation. I think an approach somewhat similar, though not identical, to the US case of Patel v. Garland would be required for this.[14] In that case, the US Supreme Court refused to prevent the deportation of an otherwise upstanding unlawful migrant of nearly 30 years based on what was probably a purely accidental mistake on a State driving license form, whereas his status was otherwise likely to be regularised via legal permanent residency. The basis of the decision was that the majority of Justices thought that the judiciary had not been given the power in the relevant statute to question whether the Attorney General, the decision maker in that case, had made a factual error in denying discretionary relief. Was the result harsh? Yes. But I cannot see any other way for those who desire a more restrictive way of interpreting Convention rights, whether we leave the ECHR and ‘assimilate’ them or adopt the suggestion of a more restrictive interpretation, to achieve a practical result worth the effort of repealing the HRA. Indeed, the system that would have to be implemented would be more restrictive than Patel, in that the Supreme Court upheld precedent in that case which held that the Court had jurisdiction to review errors of fact if they were matters of certain rights.[15] Article 3 and Article 8 enumerate rights, which are never alienable, and not privileges, which are not due as of right: a key distinction from Mr. Patel’s case, whose claim, however just, was not as of legal right. Thus, those seeking to amend the law must bar at least most queries about the error of a decision maker, or the judiciary will be within their power to narrowly interpret vague language mandating that they give very serious consideration to a decision maker. A solid bar, not a precarious balancing act or vague, and therefore malleable, notions of deference, provides the surest remedy to perceived judicial expansiveness. Before the reader thinks that I am giving my own definite opinion, let me be clear that I am not endorsing any position, only testing Sir Ed’s argument against contrary ones.
By considering a repeal of the HRA concomitant with its replacement, protecting the same rights but preventing some of the perceived abuses of the Strasbourg court, Sir Ed’s argument that the HRA has led to positive judicial results is answered. Similar results may be achieved even as some of the faults of the Act are cured. Repeal and replacement does not mean repeal and destruction but may rather be consolidation and improvement. This was the intent behind the Bill of Rights Bill which Dominic Raab, then the Lord Chancellor, introduced in 2022. Granted that the name of the Bill was constitutionally illiterate, because our present constitutional settlement with the sovereign Parliament is fundamentally embodied in the 1689 Bill of Rights and to have two Acts named thus gives rise to confusion, it is a useful proposal to consider. For example, it sought to limit judicial power to allow appeals against deportation, in sections 8 and 20 of the Bill, what many perceived as the problem of the jurisprudence of the Strasbourg court being unreasonably expansive in interpreting the right to family life.
In my view, the question as to whether the HRA ought to be repealed or the ECHR withdrawn from is not about whether the rights it safeguards are correct because everyone agrees that the rights, considered independently from their later judicial interpretation, are precious. What seems to be the issue is whether a very expansive and innovative interpretation is desirable, which Sir Ed would seem to support given his unqualified endorsement the ECHR and HRA, or whether a more limited approach giving greater weight to the factual determinations of executive officials particularly around deportation is desirable. Indeed, in the Commons, on both sides of the argument, it was the apparent practical harm or benefit of the ECHR which was the final justification given by either side for their position.[16]
Mr. Farage, arguing for the withdrawal from the ECHR, makes a single two-pronged argument. His argument, in stated at a high level of generality, is that the Convention infringes on the practical exercise of sovereign power in the British State, hindering its ability to pursue the common good, which has caused undesirable consequences, particularly concerning the deportation of illegal migrants.[17] If Sir Ed displayed glaring errors as to our constitution, so does Mr. Farage in the particulars of his argument, and these errors are serious enough that they cannot be overlooked.
When setting up his argument, Mr. Farage sets withdrawal from the ECHR in the context of the prior withdrawal of the UK from the EU. He says that the withdrawal from the European Union, and from the Convention, “is not just about the sovereignty of this country; it is about the sovereignty of this very Chamber and the people within it”.[18] This is just wrong. Parliament is sovereign. That is, the King, when assenting to legislation passed with the consent of the Lords and Commons, exercises sovereign power which is unquestionable in any court of law. When were the Commons made the sovereigns of these Isles? Perhaps during the early part of the Interregnum when Charles I was deposed, when they usurped the whole constitution unto themselves, only for Cromwell to usurp it in turn from them. That is not a happy precedent for the sovereignty of the Commons. Gladly, we are now in the reign of the third Charles, and it is the King-in-Parliament who is sovereign, not the Commons. I suppose what Mr. Farage might mean is that the Commons are presently the most powerful element of Parliament, but then he should say that, and not instead claim that they are sovereign. For all the parts of Parliament are representative. The Lords represent the interests of the people in what is their main function nowadays of scrutinising, amending, and when appropriate in limited circumstances, rejecting legislation. The King himself is the embodiment of the nation; as Elizabeth II herself said, her role as monarch was “to personify the democratic state, to sanction legitimate authority, to ensure the legality of its measures, and to guarantee the execution of the popular will”.[19] The whole of Parliament in its three constituent parts of King, Lord and Commons is a representative institution, with each part embodying the principle of representation in different ways. The Commons represent the views of the people for the time being, with the other, more long-lived parts charged with ensuring greater sobriety in judgment in accord with the inherited fabric of the constitution. Mr. Farage, in his remarks mocked the “intellectual levels of debate in this place”, that is the House of Commons. From our consideration of his understanding of our constitution even at this early stage, he himself is guilty of the unintellectual, shallow debate he accuses others of.
Be that as it may, the main aim of the argument is to establish total, in Mr. Farage’s words, “democratic control” over all rules on migration not subject to any fundamental rights.[20] He takes the view that it is democratic control which is the essence of “liberty [and] freedom”.[21] Therefore, if fundamental rights conflict with pure positive democratic will, these rights contradict the (what seems to be in his view) more fundamental “democratic rights” of the populous to make what rules they will for their own good.[22] The argument Mr. Farage makes is framed in terms of the security of the people and the common good, that rights determinations must be made domestically and not abroad.[23] Respectfully, then, he proposed a solution which was more drastic than was needed to address the problem he perceived. As I suggested above, restricting or removing the domestic effect of the Strasbourg court and its case-law and giving more authority to the determinations of domestic officials may achieve the same result with less disruption both domestically and internationally, particularly in relation to our obligations towards Ireland.
Mr. Farage characterises the ECHR as a species of “state-given human rights” which he does not support “because they can be taken away by the very states who has [sic.] given them in the first place”.[24] But that is a total mischaracterization of the Convention. First, none of the rights it enunciates are written in such a way that it is implied that they are being granted. Indeed, the language of “Everyone has” implies that the rights thus enunciated are inherent, and the wording of “No one shall” does not imply a privilege that can be removed, which words such as ‘The State grants citizens the right that they shall not …’ might imply.
Second, the preamble of the Convention specifically provides that it is instituted “for the collective enforcement of certain of the rights stated in the Universal Declaration”. What then are the nature of the rights stated in the 1948 Universal Declaration? The preamble to that Declaration itself tells us: these rights reflect “the inherent dignity and […] the equal and inalienable rights of all members of the human family”. The issue is not that these rights are “state-given”. They are not state-given any more than the principles of common law rights and the rights protected by our historic statutes of rights are state-given. In fact, it is absolutely necessary and inherent in the nature of natural law, of which human rights are a part, that specific of its prescriptions cannot be enforced effectively except that the State should promulgate them as part of the human law. How would we preserve the right to life, for example, except by criminalizing murder? Does the criminalization of murder in human law, and the consequent possibility of the repeal of such a human law, impeach the natural and human right to life? No. The human laws which give a reasonable specification of natural obligations and rights in a specific polis, accounting for its state of political, cultural and economic development, are supportive of natural rights. That the State may refuse to recognize them or purport to suspend them (which is beyond the legitimate authority of human government in any case) is a defect in the State, not in the notion of human rights considered in itself. Tyranny is not an argument against the existence of government in itself, but against the existence of bad government. Just so with rights. A bad positive law system of rights protection is not an argument against human rights, just an argument against a specific system of protecting them. Surely Mr. Farage is not so blind as to not be able to see this? Why then does his party propose a British Bill of Rights? [25] That would be caught by his own term of “state-given rights”. The internal incoherence of Mr. Farage’s reasoning, evincing shallow reflection, is concerning and unbecoming in someone who aspires to perform major constitutional reformation.
The instinct that ultimate control be vested in Parliament, however malformed its expression (as it is in Mr. Farage), is not one which, however breaks with our constitutional tradition. Indeed, it is inherent in it. The Glorious Revolution itself establishes it as the fundamental constitutional principle, preventing the executive from acting outside the law and preventing the courts from questioning parliamentary proceedings and legislation.[26] The liberties and rights of the people are to be defended, in the first place, within Parliament itself by the people’s representatives. Considering, however, that Parliament is not immune from the fits of hysteria, or fascination with bankrupt theories, which are wont to afflict the body politic from time to time, to the harming of liberty and rights, it is not unreasonable for the judiciary to have a measure of power to dampen the effect of such happenings.
The only thing that needs to be determined here is how far this power should go, which is to say, how expansively the judiciary should be able to interpret the ambit of rights. This is not about whether human rights should exist or not. They exist whether we recognise them or we blind our minds to the truth of their being. The question is about how these rights properly manifest themselves in our society at its present stage of development. So, there are natural rights which always and everywhere exist. The Universal Declaration specifies them very generally in positive international law. The European Convention seeks, as it says itself,[27] to embody these rights at a greater level of specificity for the peoples of the nations of Europe who are more united in their economic, cultural, and political development than those of other regions. Nevertheless, the nations themselves differ as to their stage, nature and level of constitutional development and thus “in accordance with the principle of subsidiarity […] enjoy a margin of appreciation” to respect these rights in differing ways suited to their society.[28]
Where one, I think, may deviate from the Convention is as to the constitutional propriety of giving practical effect to the supervisory role of the European Court of Human Rights. Considering Britain’s own robust inheritance of liberty and rights, should the European Court be excessively expansive in its interpretation of the Convention, Parliament, as being charged under our constitution as the primary body required to make rules about the common good, may domestically prevent the Court’s judgements from having effect. International unity and law has not developed to the point of international federalism, and nation states still have ultimate charge for their particular common goods. Indeed, the law at an international level is cumbersome to change because so many sovereign parties are involved. Based on this, being the still primitive nature of international law, it may be legitimate to, not be rid of the Convention entirely, but rather to embody its rights in a different way domestically, a way better suited to the present condition of the nation.
This way, the rights of the Convention may positively enrich our constitution, as a part of our general inheritance of constitutional liberty, without the encumbrance of the Strasbourg court. Would this require a transformation of Convention rights in a way mimicking repeal? I do not think so. It is rather the Strasbourg court and its view in Tyrer that “the Convention is a living instrument”,[29] which has transformed the Convention into an instrument for judicial legislation. It is very well that the Convention should address modern facts, including internet technologies, artificial intelligence etc. which were not envisioned by its promulgators. But for the meaning of the law itself to evolve according to “developments and commonly accepted standards” in Europe[30] is to introduce a relativism which is against the very nature of human rights, which takes human nature and its needs (the basis of rights)[31] as a given, stable thing. Indeed, it is against the nature of law, for how can a rule be a rule if it is always shifting? Then, it is not the same rule anymore. At any rate, I hope that my discussion in this brief post has been useful in offering some suggestions about how the debate around the Convention might positively progress, which is the maximum extent of my ambition here.
[1] Hansard HC Deb vol. 774, col. 354-356 (29 October 2025)
[2] Ibid col. 355
[3] Ibid.
[4] ibid cols. 355-256
[5] I have in mind, e.g., the Statute of Tallages (1297), a first step in preventing non-consensual taxation.
[6] Variously in Reflections on the Revolution in France (1790) for Edmund Burke where he discusses his ‘little platoons’, and Benjamin Disraeli’s extensive discussion in Vindication of the English Constitution (Saunders and Otley, 1835) of the role of culture, religion, gradual education of the population in systems of democratic government through incremental institutional development, in creating a social fabric which is capable of receiving a wholesale democratic form of government in an enduring fashion with the accompanying liberties that entails.
[7] Hansard HC Deb. vol. 774, col. 355
[8] Ibid.
[9] Entick v Carrington (1765) How. St. Tr. 1029
[10] Boyd v. United States, 116 U.S. 616 (1886) 626-627
[11] On devolution within a united Ireland, see, for example, Prof. Brendan O’Leary and Prof. John Garry, ‘Integrated vs devolved: two possible forms for united Ireland that divide opinion North and South’ (The Irish Times, 10th December 2022) <https://www.irishtimes.com/ireland/2022/12/10/integrated-vs-devolved-two-possible-forms-for-a-united-ireland-that-divide-opinion-north-and-south/> accessed 14th November 2025.
Another instructive piece on the question of a Devolved United Ireland or an Integrated United Ireland is by Prof. John Garry, ‘The constitutional question in Ireland and Northern Ireland’ (UK in a Changing Europe, 5th May 2022) <https://ukandeu.ac.uk/the-constitutional-question-in-ireland-and-northern-ireland/> accessed 14th November 2025.
[12] cf. Chris Hymas and Tim Sigsworth, ‘Pakistani paedophile escaped deportation because it would ‘harm his children’’ (The Telegraph, 10 February 2025).
[13] UI-2024-003910 (31 January 2025, Unreported) para. [5] <https://tribunalsdecisions.service.gov.uk/utiac/ui-2024-003910> accessed 14th November 2025.
[14] Patel v. Garland 596 U.S. 328 (2022)
[15] The precedent the Court upheld was that concerning the Convention on Torture, Nasarallah v. Barr, 590 U.S. ___ (2020)
[16] Cf. Hansard HC Deb. vol. 774 cols. 353, 355
[17] Hansard HC Deb. vol. 774, cols. 352-354
[18] Ibid col. 352
[19] Quoted in Anne Twomey, The Veiled Sceptre (Cambridge University Press, 2018) 691
[20] Hansard HC Deb. 774, col. 753
[21] ibid
[22] ibid
[23] Ibid cols. 753-754
[24] Ibid col. 754
[25] ‘Operation Restoring Justice: Our plan to deport all illegal migrants in the UK, and secure our borders’ (Reform UK, August 2025) <https://assets.nationbuilder.com/reformuk/pages/253/attachments/original/1756202533/REFORM_Immigration_Enforcement.pdf?1756202533> accessed 15th November 2025.
See the very interesting post on this plan of Reform UK by Richard Brant and Lauren Butler, ‘Reform UK’s Plans for “Getting Tough on Illegal Immigration”: From Legal Reset to Sunset’ (UK Constitutional Law Association, 15th September 2025) <https://ukconstitutionallaw.org/2025/09/15/richard-brant-and-lauren-butler-reform-uks-plans-for-getting-tough-on-illegal-immigration-from-legal-reset-to-sunset/> accessed 15th November 2025.
[26] Bill of Rights 1689, Article 9.
[27] ECHR, preamble: “[…] Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration […]”
[28] Ibid: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention”
[29] Tyrer v. the United Kingdom, (2002) 35 Eur. Ct. H.R. 18 [74]
[30] ibid
[31] cf. Simone Weil, The Need for Roots (Penguin Books, 2023) 3-8
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