The European Convention on Human Rights and the Human Rights Act 1998

The UK is a member of the European Convention on Human Rights and has implemented it in domestic law through the Human Rights Act 1998.

What are the Convention rights?

The European Convention on Human Rights guarantees certain rights considered to be so important that they are fundamental to democracy and the rule of law. These include the right to life, liberty, fair trials, and freedom of speech and assembly.

By signing up to the Convention the UK has accepted treaty obligations in international law to secure these rights for everyone in its jurisdiction, and to abide by final judgments of the European Court of Human Rights. The European Court of Human Rights is an international court based in Strasbourg, France, made up of judges from each of the 46 member states.

What does the Human Rights Act do?

The Human Rights Act aimed to ‘bring rights home’ by allowing people in the UK to bring claims in the UK courts rather than having to take cases to the European Court of Human Rights in Strasbourg.

This means that people in the UK can rely on the Convention rights in order to challenge acts of public bodies in court. And it means public bodies must act in a way that is compatible with the UK’s obligation to secure the Convention rights for people in its jurisdiction.

The Human Rights Act also requires the courts to interpret legislation in a way that is compatible with Convention rights so far as possible. If a court is unable to, it can issue a ‘declaration of incompatibility’. This has no effect on the ongoing validity of the legislation; it is not possible for the courts to overturn legislation. But it alerts the government to the incompatibility and provides a mechanism for this to be resolved by a remedial order, which amends the legislation to remove the incompatibility without the need for primary legislation.

Debate about reform

There has been a longstanding debate about whether to retain the Human Rights Act or to repeal or replace it, and it has faced sustained political opposition from some.

One reason for this is that it has tended to be associated with high-profile cases involving individuals or groups considered to be undeserving, such as terrorist suspects and prisoners.

There are also concerns that it has brought judges into the sphere of political decision making and upset the constitutional balance between Parliament and the courts.

The Conservative Party has on several occasions, both in government and in opposition, announced plans to replace it with a Bill of Rights. The Johnson government introduced a Bill of Rights Bill. It would have retained the same set of substantive rights and membership of the European Convention, but by amending some of the provisions of the Human Rights Act it aimed to recalibrate the way the courts, Parliament and public bodies approach the protection of rights. It would also have changed the emphasis placed on certain rights, with the intention of better reflecting a “quintessential UK” approach. The bill received widespread criticism for its approach.

Following changes of Prime Minster and Justice Secretary, the bill was ultimately abandoned by the government before receiving its second reading.

Although the bill was abandoned, the previous government brought forward other legislation that would have limited the application of the Human Rights Act in relation to specific areas of decision making. These included decisions about the removal of asylum seekers to third countries, the release of prisoners, and the investigation of service personnel for wrongdoing.

By doing so, the legislation diverged from the notion that human rights are universal and apply to everyone regardless of conduct or status.

The future of human rights protection

Since the 2024 election, the Starmer government has taken a different approach. It has committed to remaining a member of the European Convention but has indicated an intention to pursue reforms at both an international and a domestic level to the way certain articles are interpreted by the courts, in order to limit their use in asylum and immigration cases.

Legislation has also been introduced that would repeal provisions introduced by the previous government aimed at limiting the application of the Human Rights Act in the context of asylum and immigration, and removing incompatibilities.

The Conservative Party has adopted a policy position of withdrawal from the Convention following a review by the Shadow Attorney General, Lord Wolfson KC.

The review concluded that the ECHR places significant legal constraints on the government’s ability to address immigration, veterans and protest issues, and that the simplest way to remove these constraints would be withdrawal.

The European Convention is referred to in the Belfast/ Good Friday Agreement, the Trade and Cooperation Agreement with the EU, and the devolution settlements with Wales, Scotland and Northern Ireland.

Departure could thus have implications for the peace agreement in Northern Ireland; ongoing cooperation in criminal justice procedures with the EU; and relationships with the devolved nations.

Moreover, many of these obligations are also found in UN human rights treaties, or even in customary international law. This means the UK could still be bound by these obligations even if it were to withdraw from this treaty.