‘She’s taking the most extreme option’: Why Kemi Badenoch wants out of the ECHR

Read time: 4 mins

In brief…

• If the Conservatives win the next general election, the UK will withdraw from the ECHR and repeal the Human Rights Act, in an attempt to remove legislation from law which prevents deportation of migrants.
• Joshua Rozenberg tells The News Agents that advice given to Tory leader Kemi Badenoch by her shadow attorney general suggests human rights in the UK would be preserved by judges, and the Good Friday Agreement would not necessarily be affected.
• Rozeberg says Badenoch was given several options to present to members on this issue at the Tory conference, and chose the “most extreme”.

What’s the story?

The Conservatives will quit the European Convention of Human Rights (ECHR) if it wins the next election, Kemi Badenoch has announced – just over month after Nigel Farage said Reform UK would do the same.

Badenoch told attendees at the Tory Party conference that Reform wants to exit the ECHR without a plan or understanding of the consequences.

"Conference, I want you to know that the next Conservative manifesto will contain our commitment to leave," she said, also stating she would repeal the UK’s Human Rights Act of 1998.

"If there are other treaties and laws, we need to revise or revisit then we will do so.

"And we will do so in the same calm and responsible way, working out the detail before we rush to announce."

She added that human rights in the UK do not come from its membership in the ECHR, but say they were in place for "hundreds of years" in UK common law.

However, many rights for minority groups have only been introduced in the UK since the UK joined the ECHR, and some after it introduced the Human Rights Act.

The ECHR, which was drawn up after the end of the Second World War to protect human rights across Europe, has become a divisive issue in British politics as hostility towards the number of migrants entering Britain has escalated.

It prohibits any member state from carrying out mass expulsions of foreign nationals, as well as other rules on how people seeking asylum should be treated on arrival, and while they are in a country.

But it also imposes rules on member countries on the human rights of its population, which has led to concerns from many about the potential impact of the UK pulling out.

Labour is considering seeking amendments to sections in the ECHR that relate to torture, and respect for private and family life which have been previously used to prevent attempted deportations.

Liberal Democrats and The Green Party intend to keep the UK in the ECHR as it currently stands.

Badenoch's statement – made at the Conservative Party conference – has been criticised by former Tory attorney general Dominic Grieve, who described it as a "death wish" for the Tories.

He said it made the party look "incoherent", and indistinguishable from Reform.

What could change if the UK leaves the ECHR?

Concern about the UK leaving a long-standing agreement that ensures protection of basic human rights is understandable, but Joshua Rozenberg – solicitor, commentator and writer of the A Lawyer Writes substack – tells The News Agents that Badenoch, and the Tories, believes that leaving the ECHR will not threaten legal protections for people in the UK.

“They would say that we had human rights before the Human Rights Act was passed 25 years ago, and before we signed up to the Human Rights Convention 75 years ago, and the courts will continue to provide those rights for people who feel that their rights have not been respected by public bodies,” Rozenberg says.

He says leaving the ECHR means anyone contesting threats to their human rights in the UK will no longer be able to rely on its rulings in court cases, but believes the act will have a long-term impact on the UK court system because of the legal professionals who have worked under its guidelines.

“I think the most important aspect is that a whole generation of judges are used to the idea of rights,” he says.

“If the UK were to leave the convention and repeal the Human Rights Act – which is what the Conservatives are proposing – I think that it would leave very significant footprints in the sand.

“I think the judges would continue to enforce those rights.”

Would this affect the Good Friday Agreement?

There is also worry about how it could affect the Good Friday Agreement, which included provisions for courts in Northern Ireland “remedies for breaches” in the ECHR.

It was introduced in 1999, bringing almost all political violence in Northern Ireland to an end, and seen by many as one of the greatest achievements of Tony Blair’s time as UK Prime Minister.

Rozenberg says Tories believe the UK does not need to be part of the ECHR for Northern Ireland to retain that access.

“The advice to Kemi Badenoch is that you can achieve that safeguard in other ways, and as far as the Conservatives are concerned, it isn't a problem,” Rozenberg says.

“She said the difficulties are not a reason to avoid action, they are a reason to work harder to get it right.”

Why has Kemi Badenoch chosen to take this route?

Shadow attorney general Lord David Wolfson reportedly told Kemi Badenoch she had several possible options on this issue – including withdrawing from the ECHR, or repeal (or replace) the UK’s Human Rights Act.

Within days of receiving this advice, she decided to do both.

“This is the most extreme version of the options presented to her by her shadow Attorney General,” Rozenberg says.

“I think there needs to be much more discussion before that is a policy.”

He adds that taking such a hard line on the ECHR and the Human Right Act will have implications for Conservative MPs and candidates in future elections and by-elections.

“What they seem to have done is to shut down debate and say: This is over, this is what we're going to do, this is what we're going to stand on,” he adds.

“Now that may or may not be a good political decision, it’s not something I can judge, but it's certainly not the only option she had.”

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