The great unmooring: Why leaving the ECHR won’t save Britain from itself

Britain’s far-right culture war claims the ECHR is the problem. This piece explains why abandoning it won’t solve a single crisis – and why the real danger lies in a state that wants power without accountability.

There is a particular kind of British political fantasy that returns every decade or so – a dream of absolute sovereignty, purified of compromise, insulated from the rest of the world by sheer force of will. It once powered Empire. Then it powered Brexit. And now, like a revenant dragging its chains through Westminster, it has returned again in the calls to leave the European Convention on Human Rights (ECHR).

Depending on who you ask, the ECtHR is either a tyrannical foreign imposition devised by liberal elites to impose ‘wokeness,’ or a meddling court that has sabotaged Britain’s borders, undermined democracy, and prevented ministers from sticking asylum seekers on planes to Rwanda. Reform UK calls the Convention “the unfinished business of Brexit.” Kemi Badenoch calls it an outdated constraint. Nigel Farage simply calls it “the problem.”

And like all good political myths, it doesn’t need to be true. It just needs to feel true.

But here is the quieter truth that makes the shouting so loud: leaving the ECHR will not solve Britain’s migration issues, will not restore sovereignty, and will not rebalance the constitution. What it will do – what even conservative legal minds like Dominic Grieve and, ironically, the Strasbourg jurisprudence Lord Sumption helped shape – is unmoor the UK from the architecture its own statesmen have built. The ECHR is not an external force acting upon Britain. It is a British creation that Britain now pretends to be victimised by.

And if the country abandons it, the price will be constitutional chaos, legal uncertainty, and – most dangerously – a government that answers only to itself.

The first myth in circulation is the easiest to puncture: that leaving the ECHR would ‘restore control.’

That is a neat slogan. It is also nonsense.

The UK is already sovereign. Parliament is sovereign. The UK courts are sovereign. Nothing in the Convention prevents them from legislating exactly as they choose. The ECHR is not an EU-style legal order capable of overriding domestic law; it is not a supranational court with direct effect; it cannot strike down Acts of Parliament.

The idea that Britain is somehow shackled by Strasbourg is itself a political performance. The UK has been found to be in violation of only around a few hundred cases since 1959 – an exceptionally low number for a major state. Most of the time, British courts apply Convention principles without external interference.  

So why the uproar? Because ‘foreign judges’ make an easy villain. It is far simpler to blame Strasbourg for the government’s failures than to admit that the asylum backlog is caused by domestic incompetence; that deportation delays stem from the UK Borders Act 2007; that the Rwanda scheme fails because it is unlawful, not because European courts are mean.

Sovereignty is not restored by withdrawing from treaties. It is restored by governing competently – something Britain’s political class appears increasingly allergic to.

The second myth – and the most absurd – is that the ECHR is some alien ideology imposed on an unwilling Britain.

You would hardly know that British lawyers were central to its design – even if the popular claim that the ECHR was primarily a British document is exaggerated. Britain pushed hard for clarity and enforceability, and David Maxwell Fyfe shaped much of its structure, but the final text was a compromise between British legal precision and Continental preference for broader, principled rights. Or that Winston Churchill described the Convention as a “charter of human rights, guarded by freedom-loving nations,” urging the Council of Europe to adopt it as a bulwark against tyranny. 

Or that the very doctrine Lord Sumption now criticises – the ‘living instrument’ principle – was first articulated in Tyrer v. United Kingdom, which held that corporal punishment on the Isle of Man violated Article 3 ‘in the light of present-day conditions.’ Britain didn’t merely accept this reasoning: it went on to rely on it in later cases. The idea that rights must adapt to contemporary realities is not alien to British law – it is rooted in the same common-law tradition of incremental evolution.

To denounce the Court now for doing precisely what Britain once urged it to do requires either remarkable forgetfulness or deliberate cynicism. Yes, British delegates initially pushed for narrow wording – but they signed, ratified, and championed the final Convention knowing it was broad and principle-based. Britain embraced a living human-rights framework and then spent decades litigating within it. The current outrage pretends the country had no role in the treaty it helped shape.

Sumption is right about one thing: the Court has expanded its interpretation of the Convention. Women’s rights, LGBT rights, privacy protections, the duties of police forces, safeguards against torture, and – recently – climate obligations. But this is not judicial adventurism. It is the natural function of a human-rights treaty designed to prevent governments from treating the individual as disposable.

If rights did not evolve, they would wither.

The ECHR is not static because human dignity is not static. The world Britain imagines it can return to – stable borders, homogenous cultures, predictable threats – no longer exists. The living instrument doctrine is not some rogue innovation: it is a recognition that freedom is meaningless if it cannot survive its own century.

Still, legal philosophy aside, leaving the ECHR would create a constitutional mess even the Brexit architects would envy.

Because the Convention isn’t just an international treaty. It is woven into the UK’s own constitutional fabric.

It is embedded in the devolution settlements.

It is embedded in the Good Friday Agreement.

It is embedded in countless Acts of Parliament, judicial precedents, and administrative codes.

“Sovereignty is not restored by withdrawing from treaties. It is restored by governing competently – something Britain’s political class appears increasingly allergic to. ”

Scotland’s parliament must comply with ECHR standards. Northern Ireland’s peace process depends on it. Welsh legislation is constrained by it. Remove the Convention, and suddenly every devolved institution will be built on sand.

Dominic Grieve put it plainly: withdrawing would call into question the devolution settlements for Wales, Scotland, and Northern Ireland. In Northern Ireland, it risks breaching international treaty.

In other words: the UK would be voluntarily destabilising its own constitutional order for the sake of winning a culture war headline.

But perhaps that is the point. It would not be the first time.

Nothing exposes the hallowness of the anti-ECHR campaign more than the migration debate.

The claim is simple: if only Britain left the ECHR, it would deport asylum seekers at will.

But the backlog – over 100,000 pending cases – is a domestic administrative failure. The dangerous Channel crossings stem from a lack of safe routes, not Strasbourg. The Rwanda plan failed because British courts found it incompatible with British legal obligations, including refugee law and basic procedural fairness.  

Leaving the ECHR would not solve these problems. It would simply remove the last external check on a Home Office that has already admitted to unlawfully detaining children, mistreating asylum seekers, and losing track of basic case files.

If the goal is cruelty, leaving the Convention might help. 

If the goal is competence, it will do nothing. And just like how migration is not what is driving NHS collapse, prison overcrowding or economic precarity,  the ECHR is not what is blocking effective migration policy.

Here is the uncomfortable truth that the anti-ECHR movement never articulates: Britain already has the power to violate rights. Parliament can legislate anything it likes. The only reason the ECHR feels constraining is because it forces governments to justify themselves – to give reasons, to show evidence, to act proportionately, to follow due process.

In other words: it forces them to behave like a modern democracy.

This, ultimately, is the real objection. The campaign against the ECHR is not about borders or sovereignty or ‘British values.’ It is about governing without restraint. About shielding ministers from accountability. About replacing rule of law by decree.

It is about removing friction – the friction that stops governments from sliding into the realm where cruelty becomes policy and impunity becomes habit.

And this is why this debate matters.

Because a country does not lose its freedoms all at once. They do not fall like dominoes. They evaporate, quietly, in the spaces where the state stops being answerable to anyone but itself.

The question Britain faces now is not whether it should leave the ECHR. The question is much simpler:

Do we want a government that can act without being answerable to any court anywhere?

If the answer is yes, then leaving the ECHR makes sense.

If the answer is no – if we believe the state should be strong but not arbitrary, powerful but not unchecked, sovereign but not unbound – then the Convention is not a burden. It is a backstop. A safeguard against the worst version of ourselves.

The ECHR does not make Britain less free.

It makes Britain answerable. 

And that, perhaps, is the real problem – not for the country, but for the people who want to run it.