‘Suppressive’ Liberties: The war between Human Rights and politics in the UK

Published:

9 April 2026

What are the ECHR and the Human Rights Act (HRA) 1998?

After the atrocities of the Second World War, Europe became united under the sentiment: ‘Never Again.’ The Council of Europe established the ECHR in 1950, aiming to protect basic human liberties in 18 core ‘Articles’ (together with its subsequent ‘Protocols’, of which there are currently 16). For example, Article 8 provides a Right to Respect for Private and Family Life and Article 5 protects the Right to Liberty and Security of Person. Some of these articles have taken direct inspiration from the Universal Declaration of Human Rights of the UN, which preceded the ECHR in 1948. Matters regarding the ECHR are adjudicated by the European Court of Human Rights (ECtHR) in Strasbourg.

Though the UK has been a signatory of the ECHR since the 1950s, Parliament ‘brought these rights home’ by incorporating Articles 2-14 and Protocols 1 and 13 specifically into domestic law through the Human Rights Act (HRA) 1998. This means that public bodies (ranging from local councils to universities) must ensure their actions comply with these specific convention rights, but what does this mean for you?

If your convention rights are breached, instead of having to go to the ECtHR in Strasbourg, you may bring action in domestic courts via the HRA. This allows challenges against actions of public institutions to be brought in the UK courts rather than seeking time-consuming litigation in Strasbourg. If you want to appeal a final judgment reached by the Supreme Court of the United Kingdom (UKSC), your case may still move through the two chambers of the ECtHR.

Unwanted Consequences of the HRA 1998?

Parliamentary Sovereignty has historically meant that Parliament has the power to make any law it wants, without interference from the courts.

Significantly, Section 19 of the HRA requires the government minister to issue a ‘statement of compatibility’ for any new bills introduced to Parliament. Parliament needs to be aware it might enact a new law seen to breach one of your rights contained in the HRA.

Section 3 of the HRA, however, requires the UK judiciary to interpret legislation in a manner which is compatible with the Convention, where possible. If this is no longer possible to do or the legislation explicitly contravenes a Convention right, then the courts (High Court, Court of Appeal and UKSC) may issue a non-binding declaration of incompatibility. Due to the technicalities of Parliamentary Sovereignty, Parliament can still simply choose to ignore this declaration, as it is still up to them to decide whether to fix the law or not. However, despite not being legally possible, there is a longstanding fear among some in Parliament that the senior judiciary may use Sections 3 and 4 to politicise themselves by ‘striking down’ laws in a manner similar to the US Supreme Court. Significantly, the judiciary recognises that the UK’s constitutional arrangements only allow them ‘soft review’ powers of primary legislation. ‘It is not for us to attempt to rewrite the legislation’ – Lady Hale at para 39 , Wright [2009] UKHL 3 1. This has also been etched into s.4(6)(b) of the HRA: ‘A declaration of incompatibility - does not affect the validity, continuing operation or enforcement of the provision’. Nevertheless, there has still been friction with the operation of the ECHR in the UK.

Recent clashes include:

Counter-terrorism initiatives: Between 2003-2010, the watchful eye of the ECHR, through the HRA, sought to ensure the Labour government’s treatment of ‘foreign’ terrorist suspects was less degrading than that seen in the USA, evident in the findings of the Appellate Committee of the House of Lords (predecessor to the UK Supreme Court) in A and others v SSHD [2005] UKHL 71 2.

Judicial Conflict (the ‘ping pong’ battle of judgments): The Appellate Committee of the House of Lords saw a string of their judgments, in favour of local councils regarding tenant evictions, questioned by Strasbourg in Kay and Others v United Kingdom (2010). The UK Law Lords had decided that evicted council tenants could not use Article 8 to challenge their evictions as they were sound according to historic principles of English land law, seen previously in Kay v. London Borough of Lambeth [2006] UKHL 10. In 2011, the case of Manchester City Council v Pinnock [2010] UKSC 45 saw the UKSC concede their stance to Strasbourg’s interpretation that Article 8 could be used by tenants to aid their claims of wrongful eviction.

Therefore, is the ECHR overly protected by the ECtHR, suppressing the democratic voice and legal traditions of its signatories?

Stop the ECHR to ‘Stop the Boats’?

Current calls for the UK to leave the ECHR echo the loudest from the Conservatives and Reform UK, following frustrated attempts to stop (‘illegal’) migrant boats crossing the channel. The frustration for the Conservatives has stemmed back from their arrival into coalition government in 2010. For example, Theresa May sensationally and inaccurately called both the ECHR and HRA out for ‘protecting’ immigrants with unfounded claims, as Home Secretary in 2011.

There is a narrative that those at risk of deportation use Article 8 against the government in domestic courts and Strasbourg. Critics call the ECHR an ‘interfering nuisance’, but is it actually? Recent data shows a different story:

Only around 3% of deportation cases are affected by the ECHR
The UK has won 16 out of 29 ECtHR cases concerning removals of foreign nationals since 1980 (to September 2025). Of the remaining 13 cases, just 4 concerned the Right to Family Life (Article 8).

More recently, in 2024, the former Conservative government’s Safety of Rwanda (Asylum and Immigration) Act 2024 (since repealed) sought to affirm the safety of Rwanda after the UKSC raised concerns that the plans to send people claiming asylum in the UK to Rwanda may end up sending them back to persecution in home countries. (AAA [2023] UKSC 42 3)

This has re-ignited the politicians to accuse the domestic courts, due to their increased empowerment by the HRA, of crossing constitutional boundaries. These sensationalised accusations actually damage another core constitutional principle – the independence of the courts.

Section 19 of the Immigration Act 2014 severely limits domestic courts’ independence by telling the courts how to interpret the use of Article 8 in deportation claims. Greater consideration must be given to ‘public interest’ rather than a potential breach of an individual’s Article 8 rights. Despite Parliament being able to set out such parameters for the courts, it is now much harder to hold the government accountable for its actions. Would it not be in the ‘public’s interest’ to protect the rights of everyone?

So, what is the future of the ECHR in the UK?

The answer is simple… it may depend on which party wins the next general election. Our relationship with the ECHR is a policy issue and, most recently, a scapegoat used for recent failures to curb illegal immigration.

The UK is not alone in criticising the ECHR, with Italy and Denmark (on whom the UK is now attempting to base its asylum model) also frustrated by domestic interference. Though, no ‘democratic’ country has left the ECHR. Only Greece, under a military dictatorship, withdrew between 1969-74, and Russia was expelled (’withdrew’) in 2022 after its pursual of conflict in Ukraine.

Perhaps Strasbourg needs to have closer look at itself and reform to prevent the alienation of influential signatories in an increasingly volatile political order. Shabana Mahmood, Home Secretary, has suggested that, alongside other signatories, they would propose such reform to be considered. Thus, in December 2025, it was declared that the 46 signatories, including the UK, would work towards a political declaration in May 2026, adopted to carry out such reforms.

Conclusion

In a world seeing the rise of isolationism and nationalism like the 1930s, and more armed conflict since the end of WW2, we perhaps need a reformed ECHR more than ever to protect the rights of everyone. The world is increasingly resembling the world the ECHR was born out of – surely ‘never again’ won’t happen again? We will have to wait to see the course the ECHR takes in May, will it fall victim to division, or does it stand up to protect universal rights?

By Daniyal Ahmad, Student Blog Writer at QMLAC and LLB Law Student.

This blog is for information only and does not constitute legal advice on any matter. While we always aim to ensure that information is correct at the date of posting, the legal position can change, and the blogs will not ordinarily be updated to reflect any subsequent relevant changes. Anyone seeking legal advice on the subject matter should contact a specialist legal representative