Wolfson Final Report 2025
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maxPART XI: CONCLUSION
369. It is hard to overstate the impact the ECHR has had on government decisions,
across the range of policy areas canvassed in this advice. The tests represent key
areas of concern but they obviously do not represent the totality of the ECHR’s
impact on the UK. As to each of those tests:
i. The Sovereign Borders Test, highlights the substantial ECHR limitations placed on
Government in the context of immigration and border control. This is the area where
the most urgent and extensive changes are needed.
ii. The Veterans Test, notes the particular difficulty in Northern Irish legacy cases
where the Government spent considerable time and energy on the 2023 Act only to
be told by the Northern Irish Court of Appeal that it did not comply with the ECHR
(despite following a well-worn path of using immunities to further reconciliation).
Again, the ECHR has been a fundamental and corrosive constraint on the
Government’s ability both to address this sensitive area, and also to clarify the law
applying to British forces on operations.
iii. The Fairness Test, notes the more limited role that the ECHR plays in the
allocation of social housing and benefits where the main concern is not to
discriminate (although, as with all areas, governments have sought to align policies
with the ECHR, meaning that an absence of friction at present is not itself
determinative of the legal ’opportunity cost’ of the ECHR).
iv. The Justice Test, which notes (i) the proportionality test in Ziegler when
legislating to ban protests, and (ii) the inability to set blanket minimum sentences.
Here, the ECHR places excessive (and unpredictable) limits on the government’s
ability to set strong deterrents for serious crime, and to police demonstrations (albeit
some limits would probably be appropriate regardless of the ECHR).
v. The Prosperity Test, notes the (currently) limited role the ECHR plays in
holding back infrastructure projects. There is, however, serious concern that this
could be a major growth area for litigation following Klimaseniorinnen.
370. The UK joined the ECHR “only reluctantly and suspiciously”, and “probably
signed the Convention only because they expected never to be challengeable under
it”. The view of officials at the time was that because of its long history of common
law rights protections, and it’s very strong institutions, Britain “was, occasional
aberrations apart, beyond reproach”. Had the ECtHR stuck closely to the original text
and intention behind the Convention when it was agreed in 1950, it is likely that it
would not represent any real barrier to the UK addressing the issues raised in the
tests noted above.
371. Since then, the jurisprudence has developed unpredictably because the ECtHR
regards the ECHR as a ‘living instrument’ such that its decisions, and in consequence
those of domestic courts, are not constrained by the wording of the ECHR itself.
Indeed, Rule 39 Orders are a clear example where the ECtHR has gone well beyond
the original text to give itself jurisdiction to grant injunctions against national
governments. This expansive approach of judges in the ECtHR seems to be reinforced
by a strong risk aversion among UK judges and civil servants, seeking to avoid any
potential for incompatibility with the ECHR. The friction between the national
interest and the ECHR may well be understated: for every policy that is tried and
litigated, one can imagine that there is a penumbra that are quietly dropped before
ever being tested. Despite quite serious attempts to check these tendences, they
show no sign of abating. Attempts to reform the ECHR or the workings of its court
have so far proved ineffective. In the unlikely event that the current dissatisfaction of
a small number of Contracting Parties crystalises into a formal process, whether the
necessary reforms have been achieved will be obvious in the next three to four
years.
372. It is worth remembering that countries that inherited the British model of
rights protection have continued to improve their approach to rights protection and
official accountability, but done so without binding themselves to international
courts. As Lord Sumption has observed:
“In countries such as the United Kingdom, with independent and apolitical courts of
high standing, it is unnecessary to have another tier of judicial supervision at the
international level. Other countries with judicial systems similar to Britain’s, such as
Canada and New Zealand, have a high reputation for defending human rights
without submitting their domestic arrangements to the scrutiny of an international
court. If Britain were to withdraw from the Convention and re-enact the same
provisions as a purely domestic instrument, it would be possible to defend all the
same basic rights without submitting to the overbearing regulatory instincts of the
Strasbourg Court."
373. The precise nuances and immediate consequences of denunciation are not
without their complexities, and significant political capital will be required to effect a
policy to leave the ECHR; however, this advice demonstrates that none of these
complexities is insurmountable (notably, the Belfast (Good Friday) Agreement is not
a barrier). The form of rights protection that might follow leaving the ECHR is an
open question, this advice sets out the various options that are available, and their
relative merits. Appendix 3 notes the current protections for the main ECHR rights
and demonstrates that denouncing the ECHR, and with it the ECtHR, would not lead
to an immediate vacuum of rights protection.
374. It is also important to avoid conflating the politics of leaving the ECHR with the
legality of doing so. Lord Hermer KC, the Attorney General for England & Wales, has
recently suggested – without, it seems, adducing any actual evidence – that other
countries may not be willing to enter into migration or return deals with the UK if it
were no longer a member of the ECHR. That is a primarily a political question, not a
legal one, and is a matter for each individual country. However, insofar as other
countries take the same approach as the UK, that flies in the face of the numerous
migration deals that the UK has with other countries regardless of whether they are
in the ECHR or not. Such comments are, in my view, designed to direct attention
away from the legal difficulties created by the ECHR and the legality of leaving, which
has been the focus of this Advice.
375. For obvious reasons, this advice focuses on setting out the ’problems’. If the
policy decision is to leave the ECHR, further detailed work would need to be
undertaken on these options, but it is clear at this point that all would require
legislation that would be contentious.
376. Whatever policy is chosen, it will need to be given crystal-clear expression in
any future general election manifesto, explaining what steps a future government
intends to take on the ECHR, and drafted in such a way as to avoid any suggestion
that it is a conditional intention (for example, it should specify that the UK
government would leave the ECHR and repeal the HRA irrespective of the stance of
devolved administrations). That would be important not only for parliamentary
handling, especially in the House of Lords, but also (and more importantly) so that
we can be clear with the electorate as to what our policies are, and the manifesto on
which Conservative Party candidates would stand.
Lord (David) WOLFSON, KC
Shadow Attorney General
