In a series of posts on this blog, the legal historian Sanjit Nagi has outlined both a history of Labour scepticism about the European Convention of Human Rights (“ECHR”) (and in particular about the role of the European Court of Human Rights (“ECtHR”)) dating back to the Attlee government and a set of theoretical objections that have informed the strand of Labour Party thinking that continues to share that scepticism – most obviously in the case of Lord Glasman, who has called for the UK to leave the ECHR and “scrap” the Human Rights Act 1998 (“HRA”).

However, the obvious and unanswered question that arises from those posts is why the case for leaving the ECHR has had so little support in the Labour Party since the 1990s.  As Chair of the Society of Labour Lawyers, I can report that I am not aware of any member of the Society who supports leaving the ECHR.  Lawyers, and particularly “lefty lawyers”, may be regarded as having a vested interest in the ECHR: but it is notable that even Labour politicians, trade unionists, and thinkers who would be comfortable in describing themselves as “Blue Labour”, who place themselves in the tradition of writers such as RH Tawney (whom Nagi discusses in this blog), or who would firmly reject identification as “liberal” in favour of “communitarian”, “social democrat” or “democratic socialist”, almost invariably fall short of advocating leaving the ECHR or repealing the HRA.  Indeed, within the Labour movement, support for leaving the ECHR is confined to a few isolated figures, mainly academics: and their numbers and prominence are somewhat exaggerated by the fact that their opposition to the ECHR gets a number of them platforms in right-wing media outlets and think-tanks.

In my view there are a number of good reasons for the overwhelming failure of the Glasman strand of Blue Labour to convince the Labour movement of its case – reasons that are missed in Nagi’s exposition of that case.

1. The ECHR is not a plausible threat to social democracy (of any variety)

The first is that theoretical accounts of why the ECHR might prevent a Labour government doing anything that a Labour government – whether Corbynite, Blairite, or Starmerite – might actually want to do are falsified by the empirical observation that, on the other side of the Channel and (especially) the North Sea, societies have been built within the constraints of the ECHR that are in many, if not most, important respects more social democratic than the UK, and in many cases have domestic rights charters that significantly add to the rights in the ECHR (as well as, in this century, being bound by the EU Charter of Fundamental Rights, which again substantially adds to the ECHR).  Theoretical concerns about the potential impact of Article 1 of Protocol 1 or other ECHR provisions on such matters as nationalisation or taxation are not grounded in much, if any, case-law.  The recent judgment in  ALR and others v Chancellor of the Exchequer dismissing attempts to secure a declaration that the ECHR is inconsistent with the extension of VAT to private school fees – an attempt that no expert that I am aware of thought had any real chance of success – demonstrates how implausible such concerns generally are. It may also be noted that the main practical objection to nationalisation with no or inadequate compensation, the concrete example that tends to be provided, is not so much Article 1, Protocol 1, of the ECHR as the fact that it would amount to a huge “do not invest here” signal to the foreign investment on which any plausible UK economic strategy depends: and that even the concern, also sometimes raised, that the ECHR would prevent the abolition of private schools – a point which, as the High Court observed in ALR, at [59], is likely to be right in relation to a legal prohibition – does not as a matter of practical policy survive the empirical observation that, in many European countries, private education has largely withered away as a result of other social democratic education policies that run into no ECHR objections.

2. The complaint that the ECHR and HRA are undemocratic rests on a blinkered and implausible focus on parliamentary sovereignty

The second is that the supposedly “democratic” objection to the ECHR, based on the argument that the ECHR constrains parliamentary sovereignty, ignores what are actually by far the most important practical aspects of the ECHR, as applied through the HRA: that they require executive decision-making (from ministers, through bureaucrats, to police officers) to take account of what are almost universally accepted – both within Parliament and among voters – as fundamental aspects of human autonomy, and require the courts to interpret and apply statutes and the common law in a way that respects those fundamental aspects of human autonomy. 

Thus, a quick list of cases which are generally (and rightly) regarded on the left as examples of where the ECHR has been applied (either by domestic courts under the HRA or by the ECtHR) so as to defend the relatively powerless or marginalised might include the role of Article 2 in ensuring the adequate investigation of the deaths of those killed as a result of state action or incompetence (Hillsborough), the liability of local authorities to pay damages to children whose abuse they failed to prevent, the extension of the right to inherit protected tenancies to gay or lesbian partners of the deceased, or the abandonment of the policy of not permitting openly gay men or lesbians to serve in the armed forces.  Another list might be of cases which are or should be attractive to a movement that is sceptical of concentrations of power, particularly unaccountable power: cases where the ECHR has played a role in protecting investigative  journalism or  rights to protest against such power. The point of those lists isn’t just to show that the ECHR (despite complaints about its “liberal” as opposed to “communitarian” structuring) protects rights and freedoms that social democrats as well as liberals should and do support as fundamental to democracy and to the kind of society they wish to build: those lists also show how the main role of the ECHR is to “bite” on the decision-making of the executive (quite often of officials who are not directly politically accountable) and on the development of the law by the courts. In such cases, the supposed tension between democracy and ECHR rights is, at best, somewhat abstract.

The reality is that the strand of Labour thinking that supports leaving the ECHR is a strand whose thinking about democracy is dominated, to the exclusion of everything else, by concerns about parliamentary sovereignty (a concern that led that strand to support Brexit, with, as Marc Stears has noted, the effect of shattering  Blue Labour in its original early 2010s form). That strand – a type of democratic centralism – sees democracy solely in terms of the absolute legislative freedom of the House of Commons and accountability as solely a matter of the House of Commons’ quinquennial encounter with the electorate and the need for the executive to command the confidence of the Commons. But one reason why that strand is so thin, at least in terms of support within the Labour Party, is that it ignores the complexity and scale of modern government and the demands of a diverse and plural society (it is significant that the Glasman strand of Blue Labour has a habit of understating such diversity in favour of a vision of a supposedly homogeneous working class). It is just not plausible that the Commons (even if it wants to, which is sometimes not obvious) can adequately hold accountable the vast array of executive decisions that constantly impact on people’s lives in all their variety, or keep under review every single aspect of the law as it develops in ways that impact particular groups, including the marginalised and disadvantaged. The true impact of the ECHR and HRA is that they provide a way – a limited way, to be sure, but a way nonetheless – by which the day-to-day work of officials and courts can be held to account for consistency with more or less universally accepted principles of human rights.

In a longer piece I would also develop the points, familiar to most readers of this blog, that – as a result of sections 3 and 4 of the HRA – Parliament remains free to legislate contrary (or in a manner that is likely to be contrary) to the ECHR provided it is honest with itself and the electorate about what it is doing. Those provisions may plausibly be regarded as constraining Parliament, or (more accurately) as laying down a guardrail: but it is much less plausible to describe that guardrail as “undemocratic”.  But in this shorter piece, I shall move onto point 3.

3. The ECHR is an essential underpinning to European cooperation on matters essential to the achievement of a successful social democracy.

So far, this article has ignored the fact that the ECHR is an international agreement and that the ECtHR is an international court. That is because – in contrast to much of the criticism from the right – the left critique of the ECHR and ECtHR does not emphasise their “foreignness”; the critique would apply equally to a similar domestic charter of rights. However, the left defence of the ECHR does emphasise its function as a basic underpinning of cooperation between European states. In the 21^st century, most European states are not going to hand their citizens to, or sensitive information about their citizens to, or cooperate about migration with, states that do not offer a guarantee of basic human rights standards. The fact that large parts of the Trade and Cooperation Agreement – and any prospect of further agreements to improve trading relationships or any other cooperation with the EU – would be revoked if the UK left the ECHR is a reflection of that reality. Further, as has been well explained elsewhere, the ECHR underpins the Good Friday Agreement and the settlement in Northern Ireland.  

The fact that the ECHR serves as the basic guarantee of acceptable human rights standards that underpins the cooperation between European countries in so many sensitive policy areas is one reason why complaints about the ECtHR taking a “living instrument” approach to its interpretation of the ECHR do not obtain much traction on the left: the ECHR could not usefully serve that purpose if the interpretation of its key concepts remained stuck in the political and social attitudes of the 1950s (for example, in relation to the rights of sexual minorities).  But, more significantly for present purposes, that sense of the ECHR’s international significance (and its significance to the UK’s own security and prosperity) is a powerful reason why the Labour Party – a party with a rich history of support for international cooperation as a way of combating international threats, and of concern for peace and justice on the island of Ireland – remains solidly committed to the ECHR.  That support is unlikely to be shaken by Nagi’s hope that “perhaps the answers [to questions as to the knock-on effects of withdrawal on security and trade cooperation with our neighbours] are not out of the realms of possibility”, or by less honest attempts by some politicians to claim that such problems do not exist at all (attempts that are no more realistic than the promises by many of the same politicians in 2016 and subsequently that the process of leaving the EU would be both straightforward and painless).

For at least those three reasons, the Glasman strand of Blue Labour is unlikely to improve on its poor record of success within the Labour Party or the wider left.  Rather, its main political significance is (like Lexit before it) to give a veneer of cross-party support for a cause that is at the present moment centred on the populist/reactionary right of British politics.  That said, its attempt to articulate a social democratic case for leaving the ECHR should have the welcome effect of challenging unreflective support for the ECHR, and prompt the vast majority of those on the left who do support the ECHR to clarify – and more importantly, proclaim – the reasons why they do so.   

George Peretz KC, Monckton Chambers

(Suggested citation: G. Peretz, ‘The Labour Case for the ECHR’, U.K. Const. L. Blog (10th July 2025) (available at https://ukconstitutionallaw.org/))