The UK can, and should, leave the Human Rights Convention: Shadow AG’s advice underlines Conservative Party’s policy

7 October 2025 by Rosalind English

Update (10 October 2025): Kemi Badenoch has confirmed that Conservative Party policy will be to withdraw the UK from the European Convention on Human Rights (ECHR) and to repeal the Human Rights Act if they win the next general election. This was made clear in both her statements ahead of and during the annual Conservative Party Conference in October 2025, following a detailed legal review led by the Shadow Attorney General, Lord Wolfson, which found that remaining in the ECHR would fundamentally obstruct key party policies on immigration, veterans’ rights, prioritising citizens for public services, and reforming sentencing and protest laws. The Conservative Party leader explicitly stated in her conference speech: “We must leave the ECHR and repeal the Human Rights Act. The next Conservative manifesto will contain our commitment to leave. Leaving the Convention is a necessary step.”

Lord Wolfson’s advice was commissioned by the Conservative Party and is known as the Wolfson Report. It is important to note at the outset that, despite its title on the Party website, Lord Wolfson emphasises that this is “neither a policy paper nor a report. It is a legal analysis”, in other words, advice to the leader of the Conservative party. For reasons of economy in the following paragraphs I will refer to this 185 page document as a “report”.

David Wolfson KC is Shadow Attorney General Lord Wolfson of Tredegar, a prominent commercial lawyer and former justice minister. We have heard his views on the role of international law and his differences with government AG Richard Hermer domestic on Law Pod UK earlier this year.

In this paper he sets out an exhaustive examination of the relationship between the European Convention on Human Rights (ECHR) and UK law, specifically focusing on areas where the ECHR constrains the government’s ability to enact domestic policies. This report could be pivotal in shaping the party’s commitment to leave the ECHR, as it concludes that such a move is necessary to fulfil a range of key policy priorities.

For balance, here is the late Conor Gearty’s column in the London Review of Books Unwelcome Remnant – the threat to the Human Rights Act , lamenting judicial avoidance of ECHR solutions to problems and relying on common law or UK legislative measures instead. Gearty cites many examples of this, most notably the Supreme Court’s ruling in the For Women Scotland v The Scottish Ministers which he says “completely ignores the impact of human rights law.”

Back to Wolfson.

Overview

The report scrutinises the effect of the ECHR in five core public policy areas: immigration control, prosecution of military veterans, prioritisation of British citizens in social policy, sentencing and protest laws, and economic growth impediments (particularly linked to climate-based challenges to infrastructure projects). Wolfson sets out a detailed legal analysis and a set of evaluative “tests” for national sovereignty, arguing that only by exiting the ECHR and repealing the Human Rights Act can the UK achieve these policy goals unimpeded.

The Five Tests

1. Sovereign Borders Test

This test examines whether the UK can control its borders and immigration system under the current ECHR framework. The report finds that the ECHR imposes immediate and significant operational limitations on the deportation of foreign criminals and illegal migrants, largely due to the interpretive latitude given to UK and Strasbourg courts under both the Convention and the Human Rights Act (HRA): the right to family life (Article 8), the right to healthcare (Article 3), the right not to be detained beyond a certain period (Article 5), the right to respect to life, including risks from private actors in third countries (Article 2), the right not to be prosecuted as a victim of human trafficking (Article 4) and the right of access to justice (Article 6). Wolfson concludes that previous attempts to reform immigration law have been curtailed routinely by human rights obligations, making ECHR withdrawal a prerequisite for the full realisation of stricter border control policies.

Wolfson notes that outside the EHCR – like Australia – the UK would be free to adopt more robust policies in this area and still maintain compliance with other international law instruments such as the Refugee Convention. The ECtHR’s expansion of non-refoulement obligations is well beyond what is contained in the Refugee Convention, which takes into account (under Article 33(2)) risks to the population of the would-be removing state (for example, in the case of dangerous criminals).

There is nothing to stop the UK legislating to move out of the ECHR; international law obligations have no effect on the domestic law of the UK. Any court interpretation must yield to contrary parliamentary intent (Assange v Swedish Prosecution Authority (no.s 1 and 2 [2012] 2 AC 471 and Brind [1991] 1AC 696).
“It is therefore clear that Parliament could pass stringent borders legislation, even if this was in breach of the UK’s international obligations, and civil servants and courts would be bound, respectively, to carry it out and enforce it.”

The ECHR prevents this because of the ECtHR case law insisting on individualised judicial assessments of proportionality in each case, whether the incomer is a criminal or not. The subsequent delay allows incomers subject to removal a route to remain in the country indefinitely whilst their applications are processed, allowing them more time to build further links to the UK with the consequent family life “which can be pointed to in legal submissions”. Furthermore, Wolfson observes, after surveying various decisions by the Immigation Tribunal and the Upper Tribunal, some rulings that prevent removal “go beyond what the ECtHR case law nominally requires, which is a hazard that arises from the individuated nature of judicial assessment.” The Court’s (self-empowered) interventionism under Rule 39 has made it obvious, “to claimant lawyers across Europe that this was another way of preventing or delaying removal.” [Rule 39 interim measures prevented flights taking deportees to Rwanda.]

“… These so-called ‘interim measures’—which on any sensible reading of the ECHR could only be advisory—are purportedly binding orders that pose an enormous practical risk to any policy, especially one that attempts to remove illegal entrants quickly and at scale.” [paras 52 – 55]

Wolfson concludes in this section that amending the HRA or piecemeal derogation from the ECHR have not worked in the past, and are unlikely to in the future, even assuming that the UK could somehow successfully argue that the current illegal immigration situation represents a ‘public emergency’, as defined in the Convention. [paras 82-90]

2. Veterans Test

“Can we stop our veterans being endlessly pursued by vexatious legal attacks and ensure our military can fight a future war without one hand tied behind their backs?”

This question [para 95] opens a substantial analysis of the legal challenges facing military veterans, particularly those prosecuted in connection with historical episodes such as Northern Ireland’s “legacy cases.” There have been attempts to pass laws allowing immunity for reconciliation, but domestic courts—citing ECHR compliance—have blocked such measures, constraining the government’s ability to clarify or limit the legal exposure of British service members.

“The application of the ECHR to the armed services abroad expanded substantially when it was held to apply extraterritorially in the seminal case of Al-Skeini v United Kingdom. It expanded further in Smith and Others v Ministry of Defence which held that the UK also owes duties to its own soldiers. As a result, the UK is under ECHR obligations to anyone in relation to whom the UK exercises force in any overseas area over which it has effective control.” [para 101]

(Smith also eroded the common law concept of ‘combat immunity’, which previously operated to exclude the British armed forces’ civil liability for negligence in combat situations, so that no duty of care could be owed by one soldier to another on the battlefield, nor could safe conditions of work be required from the Ministry of Defence under such circumstances: Mulcahy v Ministry of Defence [1996] 2 WLR 474, 488 (H). [footnote 135]

This section details the significant ‘mission creep’ of the ECtHR in this area by surveying (i) the extraterritorial application of the ECHR to the armed forced operating outside of the UK; (ii) the expanded construction of Articles 2, 3 and 5 of the ECHR which are particularly relevant in the military context; and (iii) the English courts’ willingness to award damages for breach of the ECHR. 

Wolfson frames this as a “fundamental and corrosive constraint” [para 367(2)], arguing that the ECHR undermines parliamentary intent to protect veterans. The opening up of inquisitorial proceedings in Northern Ireland in particular involves “exceptionally lengthy and ongoing process for veterans, often spanning decades – sometimes 50 years or more from the events themselves.” [para 123.6].

This is Northern Ireland, but there is no reason why such a practice could not develop elsewhere in the UK in relation to overseas military conduct.

3. Fairness Test

This section considers whether British citizens can be put first when it comes to social housing and public services. In particular, do the ECHR Articles 8 (family life) and 14 (discrimination) confer obligations on public authorities to house non-citizens?

So far, the ECHR’s non-discrimination obligations appear to restrict the use of nationality-based preferences. The duty on public authorities to provide support and accommodation to “eligible” individuals and their dependents (including providing food, clothing, accommodation to a certain standard, and medical care) are contained in a variety of instruments including the Immigration and Asylum Act 1999. This came under public scrutiny following the protests and ongoing litigation over the accommodation of asylum-seekers in Epping (Secretary of State for the Home Department Somani Hotels Limited v Epping Forest District Council [2025] EWHC 2183 (KB) [see UKHRB posts here and here].

The strain on the system caused by the influx of asylum seekers has caused requirements to be placed on all local authorities to participate in the asylum dispersal scheme. Why does this matter? Because, Wolfson observes, any legislative refinements that could be made allowing British citizens to have priority in applications for certain accommodation would be likely to breach the ECHR on the grounds of discrimination [para 165] Moreover, any legislation which did not take into account the rights of children who were non-British citizens could also fall foul of the ECtHR’s case law.

As elsewhere, such constraints are less visible in current policy due to pre-emptive alignment with ECHR standards. Wolfson argues that the absence of legal tension today is not proof of unconstrained sovereignty, as governments are continually forced to “pre-clear” their policies for ECHR compatibility, limiting legislative creativity and differentiation.

4. Justice Test

This test addresses sentencing and protest laws, examining whether the ECHR inhibits the government in enforcing robust criminal justice measures or preventing disruptive protests.

Articles 10 (freedom of speech), Article 9 (freedom of thought) and 11 (freedom of association) of the ECHR constrain the government from imposing outright bans on disruptive protests without considering proportionality

Wolfson asserts that judicial intervention under the HRA and the ECHR has regularly resulted in shorter sentences, restrictions on the imposition of whole-life tariffs, and the overturning of parliamentary intent. The ECHR has also emboldened courts to curtail government responses to disruptive protests—including climate protests that affect roads and infrastructure—which presents ongoing and escalating legal risk. This has the result that, in distinction to countries outside the ECHR such as Australia and New Zealand, the UK is obliged to ensure that it remains compliant with the broad principles contained the ECHR. Membership of the ECHR, in other words,

“actually makes criminal policy design more time-consuming, imposes substantive limitations, and encourages risk-aversion”

5. Prosperity Test

The Prosperity Test as outlined in the report was triggered by the recent decision by the ECtHR to intervene in signatory state’s economic planning by inserting climate mitigation into the catalogue of rights in the Convention. The question at the top of this section is:

“Can we prevent courts from treating action on climate change as a human right, and stop what are often perceived to be endless legal challenges to infrastructure projects?” [para 193]

We covered the Strasbourg ruling in VereinKlimaseniorinnenSchweiz and Others v Switzerland(53600/20, 9 April 2024, ECtHR) in two episodes of Law Pod UK, one with David Hart KC, and a later one with Lord Sumption. Both pointed to the open ended possibilities of climate change challenges under the ECHR if this proves to be a favoured direction of travel. As Wolfson observes, despite the criticism that this ruling has attracted (most notably from the UK dissenting Judge Eicke)

“it cannot be regarded as an aberration or outlier—and it was decided by an overwhelming majority in the ECtHR.” [para 209]

…..

The final parts of the report examine whether the UK can leave the ECHR without breaching other Agreements, outside the scope of this post. A detailed summary can be found in Joshua Rozenberg’s Substack post here. Suffice to say that Wolfson draws the conclusion that there is nothing in these agreements to impede withdrawal by the UK from the ECHR.

Core Findings

Wolfson’s central legal finding is that the ECHR and its domestic counterpart, the HRA, create unsurmountable procedural and substantive barriers to the realisation of core Conservative policies in these five domains. He is unequivocal that more limited measures—such as mere HRA repeal or negotiating reservations with the Council of Europe—would not suffice. Instead, a total withdrawal from the ECHR regime is required if policy flexibility is to be restored. [paras 299]

A welcome reality check comes in a paragraph reminding us of the very different characters of the member states of the Council of Europe. The ECHR affects the Contracting Parties in different ways; of course it does,

“owing to their national constitutions, any incorporating legislation, theirjudiciaries, the nature and habits of their executive power, the strength of judicial review, the prevailing media and NGO ecosystem and so on”

Wolfson is clear, however, that simply leaving the ECHR would not “reset” British law to its pre-Convention state. Human rights culture and judicial methods have been deeply embedded, and continued vigilance would be necessary to maintain legislative and judicial discipline. He notes, for example, that the UK would remain bound by other international human rights treaties, such as the Universal Declaration of Human Rights, and by the common law’s own protections—pointing out that the UK has “never depended” solely on the ECHR for its human rights framework.

Policy Options and Legislative Roadmap

Wolfson sets out three main legislative options for a post-ECHR UK:

A new, distinctly domestic Bill of Rights, carefully drafted to avoid ECHR-style interpretation, combined with precise legislation in sensitive areas like immigration, veterans’ immunity, and freedom of speech.

No replacement Bill of Rights, relying instead on regular legislation and robust judicial review of executive power through traditional common law mechanisms.

Continued adherence to other international human rights standards, allowing parliamentary sovereignty to drive domestic policy on contentious issues.

He further advocates for a structured withdrawal process under Article 58 of the ECHR, including passing enabling legislation, providing at least six months’ notice, and ensuring that withdrawal would not be retrospective under international law.

Membership of the Council of Europe is not contingent on adherence to the ECHR – so – contrary to much media anxiety – the UK would not be “out in the cold”, with Russia and Belarus if we were to withdraw from the Convention.

Recommendations

Lord Wolfson recommends that the Conservative manifesto set out detailed, specific legislative proposals to address the identified problem areas, with a guarantee of early passage if the party is elected. He urges a clear communications strategy to persuade the public that human rights in Britain have a long-standing, home-grown foundation and that leaving the ECHR does not mean turning away from these values. He repeats the warning to avoid replacing the ECHR with a Bill of Rights too closely modeled on the former, which could perpetuate the very issues the move is intended to solve.

Conclusion

In the final paragraphs, Wolfson reminds us that the UK joined the ECHR with reluctance and out of a sense of international duty post-World War II. British expectations were that the Convention would not constrain domestic action, resting on the tradition and robustness of UK common law as an adequate rights-protecting system. But the “living instrument” doctrine has allowed the ECtHR to push the boundaries of the Convention long past its boundaries. The time has come for a root and branch review. Lord Wolfson contends that the ECHR and its domestic implementation have placed unacceptable limits on democratically accountable policymaking—most notably in border control, protection of service personnel, national prioritisation in social policy, criminal justice, and economic infrastructure. He concludes that only decisive separation from Strasbourg through legislative and international action can restore parliamentary sovereignty and policy flexibility, with continued protection of fundamental rights delivered through UK law and institutions.

The report is co-signed by Shadow Solicitor General Helen Grant.