As the UK leads calls to ‘modernise’ the European Convention on Human Rights (ECHR), the question is not whether the convention is outdated but if the political narrative around it is eroding the very trust it was designed to uphold.
Ministers have claimed growing European support for reforming the convention. Sixteen countries reportedly met in Copenhagen earlier this month to discuss proposals to curb what they describe as judicial ‘overreach’ in asylum and deportation cases. The aim, they say, is to ‘modernise’ the convention by giving states more discretion to balance border control with individual rights.
The problem, however, is not inherent in the convention, but in the political narrative that has come to define it. The ECHR already provides a wide degree of national discretion through the doctrines of subsidiarity and the ‘margin of appreciation’, recognising that domestic authorities are best placed to balance rights with local conditions and competing interests. As Lord Bingham observed, the convention was ‘never intended to erode the sovereignty of its signatories’ and, properly understood, it ‘strengthens, rather than weakens, democratic governance by requiring power to be exercised within the limits of law’.
Yet successive governments have found it politically convenient to cast the ECHR as an external constraint rather than a framework of accountability. Consistently accepting that narrative is not a long-term strategy. The reality is that misinformation about the scope and effect of the convention has taken hold in public debate, and it needs to be corrected, firmly but factually, if confidence in the rule of law is to be maintained.
This same narrative has shaped the wider political debate about whether the UK should withdraw from the ECHR altogether. Lord Wolfson KC’s (pictured) advice, now widely discussed in political and legal circles, sits at the heart of this debate. As Joshua Rozenberg has neatly summarised, the advice presents the ECHR as a barrier whose ‘expansive interpretation’ by Strasbourg has crept into multiple policy fields: immigration, veterans’ rights, protest law and even infrastructure planning. It concludes that only a clean break from the convention, not piecemeal reform, would remove those obstacles.
Yet a careful reading shows that Wolfson acknowledges serious consequences. In particular, his analysis of the Trade and Cooperation Agreement (TCA) is striking. He concedes that withdrawal from the ECHR would give the EU a legal basis to suspend part 3 of the TCA (the provisions governing criminal law cooperation, data exchange, extradition and mutual legal assistance). Wolfson downplays the risk by observing that either party may terminate the TCA in any event at 12 months’ notice and therefore characterises the consequences as ‘more likely political than legal’. That optimism ignores the fragility of the current framework.
The House of Lords Justice and Home Affairs Committee has already described part 3 of the TCA as ‘sub-optimal’ compared with pre-Brexit arrangements. The loss of SIS II access and the refusal of 13 member states to extradite their nationals to the UK are not theoretical risks; they are live gaps. Against that backdrop, to describe ECHR withdrawal as merely another ‘political’ dimension is to understate how vulnerable cooperation already is.
His analysis also omits a significant point. The UK’s post-Brexit security framework does not rest on the TCA alone. During the withdrawal period, it was understood that the UK would continue to rely on cooperation through the Council of Europe conventions on extradition and mutual legal assistance as fallbacks, if replication of EU mechanisms proved impossible. But those instruments are available only to Council of Europe members, and membership of the council depends on adherence to the ECHR.
Withdrawal from the convention would therefore mean withdrawal from the council, and with it the loss of access to these essential backstops. While cooperation with non-members such as the US is possible, those arrangements are bespoke. Geography, the scale of cross-border movement and shared legal history make Europe a different case entirely. There is no substitute for the integrated system of extradition, evidence-sharing and judicial cooperation that the UK would be giving up.
Both government and opposition now risk converging on the same misconception: that the ECHR is a political obstacle rather than a legal foundation. Ministers speak of ‘modernisation’, while the opposition goes further, suggesting that withdrawal from the convention may ultimately be necessary to restore control. Between them, a damaging (but familiar) consensus is emerging: that sovereignty is strengthened by the freedom to disregard international commitments. In reality, the UK’s credibility as a rule-of-law nation, and the integrity of its security cooperation with European partners, depend on breaking that consensus.
Modern sovereignty is defined not by isolation but by participation in lawful systems of cooperation: the Council of Europe, the UN, the WTO, and the network of European legal instruments that facilitate trust across borders. States gain legitimacy and influence precisely by respecting the rules to which they have consented; those who stand outside them find their sovereignty lonelier, and their power diminished.
Rebecca Niblock is a partner at Kingsley Napley, London
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