Recent protests over the UK government’s plans to house asylum seekers in hotels—most prominently at the Bell Hotel in Epping, Essex—have thrust human rights law and immigration policy back into the spotlight of British political debate. What might surprise observers is that several prominent Labour Party politicians, including former Cabinet ministers, are now openly questioning Britain’s commitment to the European Convention on Human Rights.

Jack Straw, who served as Home Secretary from 1997 to 2001 under Tony Blair and was part of the Labour government that passed the Human Rights Act 1998, has called for Britain to suspend its participation in the European Convention on Human Rights. David Blunkett, who succeeded Straw as Home Secretary (in 2001–04), has echoed these calls. Graham Stringer, the Labour MP for Blackley and Middleton South in Manchester, who was once considered part of the party’s left wing, now advocates for Britain to withdraw from the Convention entirely. The new Home Secretary Shabana Mahmood is thought to favour changes to Britain’s relationship with the ECHR, while the new Deputy Prime Minister and Lord Chancellor, David Lammy, has written critically about the operation of human rights law in his 2011 book Out of the Ashes: Britain After the Riots. 

Some Labour supporters view such positions as a betrayal of core party principles, while many political commentators have interpreted this shift as evidence that the Overton window has moved significantly rightward on immigration and human rights issues. However, this isn’t new territory for Labour politicians. The historical record reveals a pattern of Labour figures breaking ranks on human rights when it comes to immigration enforcement. In 2013 and 2014, both Blunkett and Stringer defied their party’s official position (known in the UK as “rebelling against the whip”) to support proposals by Dominic Raab, then a young backbench Conservative MP. Raab’s amendments sought to prevent foreign nationals from using Article 8 of the European Convention—the “right to family and private life”—to avoid deportation. Blunkett and Stringer were joined by other Labour MPs including former Cabinet minister Hazel Blears, Siobhan McDonagh, Gisela Stuart, Derek Twigg, and Frank Field, all of whom voted alongside rebel Tory MPs in parliamentary divisions on this issue.

Although Jack Straw remained loyal to the Labour whip and didn’t vote against his party, he spoke publicly in favour of Raab’s reforms and urged David Cameron’s Conservative-Liberal Democrat Coalition government (2010–15) to seriously consider the proposals. When Raab finally became Deputy Prime Minister and Lord Chancellor under Boris Johnson in 2021–22, he attempted to implement similar changes to human rights law from within government.

Even Tony Blair, the Prime Minister who introduced the Human Rights Act in 1998, expresses frustration with the European Convention on Human Rights in his 2010 memoir A Journey, particularly lamenting the way in which it complicates efforts to deport people who have entered Britain illegally. John Reid, who served as Blair’s final Home Secretary from 2006–07, also publicly called for reforms to human rights laws that would give authorities more power to fight terrorism. He supported expanded police powers, opposed amendments that would have limited fingerprinting and strip-searching to terrorism-related detentions only, and opposed requiring court approval for control orders. Perhaps most revealingly, government documents released in 2023 under the Twenty-Year Rule (which makes official papers public after two decades) show that in 2003, Jonathan Powell—Blair’s chief of staff and one of his most trusted advisers—suggested in a Downing Street brainstorming session that Britain should consider passing legislation that was incompatible with the European Convention on Human Rights, as a “nuclear option” to address illegal immigration. These positions reveal a long-standing tension between the party’s stated commitment to human rights and the necessary pressures of governing given the UK’s ongoing problems tackling illegal immigration.

Some might argue this simply provides more evidence that New Labour—Blair’s modernised, centrist version of the party from the 1990s onward—had already abandoned authentic Labour principles. But in fact, leftist opposition to the European Convention on Human Rights long predates Blair’s government.

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When Clement Attlee’s Labour government (1945–51) signed the European Convention on Human Rights on 4 November 1950, they negotiated a series of opt-outs and, crucially, refused to accept the jurisdiction of the European Court of Human Rights. William Jowitt, Attlee’s Lord Chancellor, was openly critical of the European Convention, arguing that “it is intolerable that the code of common law and statute law which had been built up in this country over many years should be made subject to review by an international court.” Jowitt also took issue with what he saw as the vagueness of the rights defined by the Convention. Sir Hartley Shawcross, the Attorney General at the time, dismissed the entire project: “I have never attached practical importance to the proposed Convention… and do not think that its existence would act as a barrier against the encroachments of totalitarian restrictions.” Deputy Prime Minister Herbert Morrison was equally dismissive, saying he had “always been sceptical about the value of these conventions on human rights.”

This left-wing scepticism had deep political roots. The labour movement had historically been wary of judicial power, shaped by bitter experiences like the 1901 Taff Vale judgment (which severely restricted trade union rights), the persecution of the Tolpuddle Martyrs (agricultural workers transported to Australia in 1834 for forming a trade union), and the use of sedition laws against radical thinkers like Tom Paine, author of The Rights of Man (1791–92). For Labour politicians, relying on judges to protect rights that had been won through working-class struggle seemed dangerously naive.

This suspicion of the judiciary was linked to what is called “political constitutionalism”—the belief that Parliament, not the courts, is supreme and the basis of the British Constitution. As historian Helen Thompson explains, the Left believed that British citizens “possess by virtue of their membership of a historical political community ancient liberties and rights, including those to choose freely that their own Parliament decides upon the laws to which they are subject.” Parliament—which Nye Bevan, the architect of the National Health Service, described as “the most precious political instrument in the hands of the people”—was where sovereignty properly lay. This language echoes through Labour manifestos of the 1970s and the speeches of figures like Hugh Gaitskell (party leader 1955–63), Michael Foot (party leader 1980–83), and Peter Shore, as well as in the writings of Marxist historian E.P. Thompson. The common law and the judiciary, in their view, ought to be subordinate to democratic politics. 

Codified bills of rights would entrench judicial power and weaken political constitutionalism. As the socialist legal scholar J.A.G. Griffith, who rejected what he called “human rights culture,” argued, such bills of rights “merely pass political decisions from the hands of politicians and into the hands of judges and other persons.” Given that the judiciary consisted overwhelmingly of white men from privileged backgrounds, likely shaped by the prejudices of their class, the Left doubted whether judges would defend the interests of the working class. Since politicians derived their authority from voters while judges did not, expanding judicial power would weaken elected officials and ultimately undermine the ballot box—the only mechanism through which the working class could make its voice heard. This would place law above politics, when the opposite should be the case: people first, panjandrums second.

The Left’s political constitutionalism was reinforced by fears that innovations like codified bills of rights and the European Convention could actively undermine socialism. As Marco Duranti has documented, many drafters of the European Convention were conservatives who, traumatised by World War II, feared that democracy itself might lead to tyranny. Some were explicit in their desire to constrain socialism. The Conservative politician David Maxwell-Fyfe, one of the Convention’s key drafters, saw it in precisely these terms, going so far as to compare the policies of Attlee’s Labour government to Nazism. Many in Attlee’s Cabinet, meanwhile, feared that the Convention could hamstring Labour’s ambitious economic and social reforms.

Many of the era’s advocates for codified bills of rights and expanded judicial power came from the Right: figures like Quintin Hogg (who coined the term “elective dictatorship” to criticise parliamentary supremacy), economist Friedrich Hayek, and Conservative politician Keith Joseph. Even Margaret Thatcher herself proposed entrenching the ECHR in Labour’s devolution bill in 1976.

Conversely, the National Council for Civil Liberties (now known as Liberty) opposed a bill of rights that would have entailed incorporating the European Convention into British law. At the 1987 NCCL Conference, Bill Morris, general secretary of the Transport and General Workers’ Union, and trade union lawyer Tess Gill spoke against the Convention. In the left-wing New Society magazine, journalist Martin Kettle (now a Guardian correspondent) expressed relief that Thatcher had not introduced a bill of rights, seeing this as evidence of the limits of her “authoritarian populism.” Many ECHR rulings went against positions cherished by the Left: from the closed shop (mandatory union membership in certain industries) to Ken Livingstone’s “Fares Fair” policy which provided subsidised London transport when he led the Greater London Council in the 1980s. To many of leftists, the European Convention was an illiberal and anti-democratic institution. Far from guaranteeing freedom and democracy, it prevented democratic resistance to capitalism and placed inherently political questions outside the sphere of democratic contestation, imposing an anti-socialist worldview on the body politic.

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One should therefore be sceptical of claims that opposition to the European Convention represents a departure from authentic Labour tradition. While such a view is not mainstream among today’s Left, it accurately reflects the party’s historic position on judicial power and human rights law.

By the 1990s, Labour had come to see human rights as a potential shield against Thatcherite hegemony. This was largely due to the influence of a group of lawyers and activists called Charter 88, as well as the liberal legalism of American philosophers John Rawls and Ronald Dworkin. The Left’s about-face on this issue occurred at around the same time as they changed tack on the European Union. The 1992 Labour manifesto was the first to promise constitutional rights, while the 1997 manifesto that brought Tony Blair to power explicitly promised to incorporate the European Convention into British law. 

Remarkably, the Conservative Party under William Hague (1997–2001) was largely ambivalent about this change, effectively abstaining on the then Human Rights Bill at its Third Reading in Parliament. Dominic Grieve, then a young Conservative frontbencher, commented, “I have no religious or principled objection to the incorporation of the European convention on human rights into British law. On the contrary, I see many attractions in that course, but I have considerable anxieties about the way in which it may impact on the constitutional arrangements in this country.” In 2002, he revealed that he had supported incorporating the Convention into British law. Grieve, who later became Attorney General and is now co-president of the European Movement, was paradoxically on the Eurosceptic right of his party. Even today, Conservative supporters of the Convention (known as ‘Runnymede Tories’) include figures associated with the Tory Right, such as David Davis (former Brexit Secretary) and Alec Shelbrooke. Former Conservative MP Steve Baker, who led the hard-line “Spartan” Brexiteers, has cited the European Convention in his opposition to both COVID-19 lockdowns and Jeremy Corbyn’s economic policies.

History aside, much of the discussion of the Convention is misguided. For some, the questions raised retread ground familiar from the Brexit debate. For others, these legal questions are merely technical and technocratic. For some in the Labour camp, calls for reform are an incoherent attempt to appeal to the “legitimate concerns” of Reform UK voters, while still clinging to liberal legalism. But the fundamental issue is less the Convention itself but the rights-based political morality that underpins it.

There are obvious reasons why fealty to the ECHR, on the basis that it is the only bulwark against authoritarianism, is mistaken. Britain had ideas of rights prior to the Convention—the very fact that British lawyers were involved in its drafting presupposes this. We abolished slavery, established trial by jury, and extended suffrage to women before any human rights convention was established. Nor does being a signatory necessarily imply greater respect for human rights. Liberal democracies such as Canada, Australia, and New Zealand are not signatories to the Convention, while Hungary is. Indeed, Britain has passed a spate of illiberal legislation while the Convention has been embedded in British law.

But the more fundamental problem with appeals to human rights—a staple of liberal left thinking—is that they are morally incoherent. Why do we have rights—what are those rights based on and what purpose do they serve? These are questions that cannot be answered simply by appealing to rights themselves in a circular fashion. Indeed, why do the rights written down in the European Convention of Human Rights necessarily belong together? They have no self-evident coherence. Why does the right to freedom from torture necessarily accompany the right to life? What do they have in common with the right to private property? And why not include the right to be free from hunger or the right to universal healthcare? The Convention addresses none of these issues.

The problem is further demonstrated by the Convention itself. It cites two kinds of rights: unqualified rights and qualified ones, with “margins of appreciation”—a key legal doctrine that allows national governments some discretion in how they interpret and implement certain Convention rights in an attempt to respect the fact that different countries have varying cultural, historical, and social values. Article 8 (the right to private and family life) can be restricted for national security, public safety, or the prevention of crime; Article 9 (freedom of religion) can be limited to protect public order or the rights of others; and—most notoriously—Article 10 (freedom of expression) can be restricted to prevent hate speech or protect national security. But if rights are absolute, there should be no margin of appreciation at all. On what basis do we determine whether a right is qualified or unqualified? These judgement calls presuppose a politics upon which rights are contingent. Similarly, the UK’s Equality Act protects people from discrimination on the basis of their beliefs, but it does not protect people with beliefs that contravene other people’s fundamental rights—in theory at least. Churches are free to discriminate against gay clergy or deny a gay couple the right to be married in church. But why is this the case? Weighing up the claims of churches and their gay members requires us to make inherently value-laden judgments that cannot be reducible to rights.

Liberals sometimes claim that human rights—such as those outlined in the Convention—are universal. But rights cannot be universal—or universalisable—since both the rights themselves and their application often involve conflicts and trade-offs. Banning smacking, for example, could protect children’s rights but it may clash with the right to family and private life—i.e. the right to raise one’s children as one sees fit, without interference from the state. If one extends the right to life to a foetus, that conflicts with the pregnant woman’s right to choose—and abortion remains legal in the UK although the latter is not recognised as a fundamental right. These are conflicts that cannot be resolved by reference to human rights. They demand that we make judgements as to the relative weight of competing interests and values. Such judgements are inherently value-laden, and therefore require a political morality independent of rights. 

There are implications that flow from this. The first is that—as the political constitutionalists point out—it is necessarily illiberal and undemocratic to take value-laden decisions out of the political sphere. Making decisions about how to balance competing interests is a core aspect of politics; in a democracy it should be done by elected representatives. The second implication is that, even within a human rights framework, conflicts of values and goods remain. This very fact means that value-neutrality—a concept often seen as integral to classical liberalism—is an impossibility. 

One can see this clearly when we look at identity politics, which is connected to rights-based liberalism. We may believe that we must prevent harm to marginalised and historically oppressed groups, yet it is clear that these groups themselves have conflicting interests. The claim of a Muslim who experiences bigotry may conflict with that of a gay person who experiences homophobia. The identity claim of a biological woman may conflict with that of a trans woman. Moreover, any attempt to uphold a de facto right not to be offended—in the name of political correctness—leads to an impossibility, since one marginalised group’s expression of their sincerely held beliefs may cause offence to another marginalised group. A universalist political morality is the only appropriate basis upon which to adjudicate between the interests of historically oppressed and marginalised groups.