What the politicisation of the ECHR reveals about legal literacy

This article was written by Jojo Mooc, a first-year LLB student at the LSE and Communications Officer for the Website & Blog of the LSESU Pro Bono Division of the Law Society.

With the 75th anniversary of the ECHR this past November, it is timely to reflect on the role the Convention has played in shaping a rights culture within the UK, particularly in practice rather than in abstraction. Although its status has long sat within the Overton window, with recurring proposals for a ‘British Bill of Rights’, the ECHR has re-entered political focus following renewed calls by figures such as Farage and Badenoch to withdraw from it as part of the rhetoric around ‘stopping the boats’. Whilst this proposal failed to gain parliamentary support when raised in October, its prominence reveals a deeper issue: the growing disconnect between the legal protections the Convention provides, the communities most reliant on them, and public understanding of how those rights operate on the ground.

When political debate distorts the content of Convention rights, pro bono legal work often becomes the first point of access for individuals trying to understand, assert, or defend those rights in practice. This article examines how the politicisation of the ECHR feeds public misunderstanding of rights, and why strengthening legal and political education is essential to the effectiveness of pro bono work that relies on those rights being properly understood rather than rhetorically misrepresented.

A brief overview 

For the British right, the ostensible risk posed to the sovereignty of Westminster drives their aversion to the ECHR, especially due to recent Euroskeptic rhetoric. It may seem impossible to preserve the legislative supremacy of Parliament entirely while still retaining intergovernmental global relations.. Affording a basic standard of human rights protection should not be a novel concept. We are already a dualist state; that is to say, international treaties must be incorporated by Parliament, facilitating the parliamentary supremacy that is so endorsed. Indeed, the ECHR was not incorporated into UK domestic law until 48 years after its declaration, with the advent of the Human Rights Act 1998 (HRA), giving greater power to the courts with declarations of incompatibility. 

Polling done by YouGov found that 46% of British citizens do not want to leave the ECHR; whilst 24% are still unsure, highlighting not political apathy per se but what seems like a lack of understanding of the system. This is further corroborated by the fact that only 22% of respondents knew that the right to migration is not covered by the Convention. In fact, it is a common misconception also that the ECHR is tied to the EU when it is in fact not. The populist xenophobia perpetuated during the Leave campaign demonstrates that such sentiment has been all-pervasive and ultimately recycled in recent years. Migrants have become the scapegoat for wider political failings and economic instability. 

Predominantly, it is Article 3 and Article 8 of the HRA which are engaged in asylum cases. Five months on from his ‘Island of Strangers’ comment, Starmer has said he would not be opposed to changing the way in which Art.8 (which is the right to family and private life) is used on the grounds of appealing deportation due to family ties.  Because Article 8 is a qualified right under s.8(2), the state may interfere where this is deemed necessary in the interests of: ‘national security, public safety, economic well-being, the prevention of disorder or crime, the protection of health or morals, or the rights and freedoms of others’. This grants the government significant discretion in determining what counts as “necessary” interference, creating scope for arbitrariness. Both the left and right are entertaining this prospect, yet the wider public  does not seem to be as concerned as they should be. Perhaps it is Labour’s perceived lack of legitimacy (gaining only 33% of the electorate vote but over 400 seats in the 2024 General Election) which has led to Starmer’s  attempt to appease those convinced by the increasingly popular rhetoric, but it could also be argued that its only real, tangible effect has been to further isolate its main votership.

Furthermore, there has been a recent disregarding of Convention rights by the government, particularly in regard to immigration. In the Illegal Migration Act 2023, Braverman’s use of Section 19(1)(b) highlights how legislation can be passed even if it contravenes the HRA, and the Safety of Rwanda Act 2024 was a direct response to the Supreme Court finding issues in relation to s.3 and the real risk of refoulement. Although the Rwanda plan was scrapped by Labour, it remains a reminder that the so-thought entrenched rights culture could easily collapse at the governing party’s electoral considerations. 

Pluralism necessitates educated citizens 

The dearth of political and legal education in the UK becomes dangerous when citizens do not understand how undermining the rights of certain groups leads to the threatening of rights in its totality. When both the major parties are painting the upheaval of rights as trivial in matter, it is pertinent that citizens should not be taking this at face value and thinking more critically about what rights the state owes to its people. 

Although traditionally schemes of civic and legal education may be facilitated by programmes which target disadvantaged students, such as through StreetLaw, it is something which arguably should be mandated by the government due to its sheer importance. As part of the Curriculum and Assessment Review, the government has proposed compulsory “citizenship lessons”, which incorporate learning about the law and rights, as well as financial literacy. It has also been endorsed by the Electoral Commission, highlighting how it would enhance a diversity of views. It might be unsubstantiated to say that proposals to give 16-year-olds the vote must be preceded by such education, seeing as others are also likely to be swayed by media, or those around them, but this reform is ultimately long overdue. 

Nonetheless, this reform only accounts for a minority of the population (albeit a very important minority), and the growing number of people getting their news from social media instead of traditional journalism means that misinformation is spread much quicker. Populist notions,disguised as ‘grassroots’, find their way to people in a prompt manner and can be circulated. Unless prevailing attitudes towards fundamental rights and the (perhaps justifiable) disillusionment is addressed, people will fail to think critically about what is happening in our society, as they are not given the tools to comprehend what is being eroded. 

We must see the ECHR framework as something which protects and benefits everyone, instead of using it as a mechanism to villainise marginalised groups. Foremost, it starts with education.