THE extreme right in Britain has the European Convention on Human Rights (ECHR) firmly in its sights. Not a day passes without the Daily Telegraph, Daily Mail and Tory leaders blaming illegal migration and Britain’s porous borders on the convention and the European Court in Strasbourg.

As always, the truth is more prosaic. Illegal migration is a feature of the modern world and a global phenomenon, as events in the US demonstrate. It is not limited to Europe and is not some peculiar consequence of its legal system. The law directs our judges to place “little weight” on a private life or relationship formed while in Britain unlawfully.

The 148,000 people arriving in small boats between 2018 and 2024 constituted 84 per cent of detected irregular arrivals, 70 per cent of whom were entitled to asylum under the 1951 Refugee Convention as people with a well-founded fear of persecution in the country of their nationality.

Why can’t they be returned to France? An inevitable consequence of the hard Brexit pursued by the British government was that Britain left the Common European Asylum System and the Dublin Regulation. The previous agreement that allowed Britain to return refugees to the safe EU country from which they came is no longer in place. This is a consequence of Brexit.

The reference to “detected” irregular arrivals is key. Arrival by small boat crossing is usually visible and recorded. Most people in Britain without a legal residence permit are undetected, or they would be expelled.

Estimates by the Pew Research Centre and the Greater London Authority suggest that there are between 800,000 and 1.2 million unauthorised migrants in Britain. The problem (unless you believe in unregulated migration) is primarily one of detection and enforcement, not human rights law.

Some people on the left and the Prime Minister are also in denial, in claiming that most non-refugees arriving on these shores from safe countries are the passive victims of criminal gangs, rather than economic migrants who have purchased their passage.

These delusions of right and left — the problem is our human rights laws; the problem is criminal gangs, British racism and cruel indifference to refugees — mean that the far-right delusion has had an easy ride.

Time may be running out. As one legal commentator recently noted, withdrawal from the ECHR, “an option that was seen as the headbanger’s view … has clearly entered the mainstream.”

Fortified by Brexit, the campaign to withdraw from the convention waged by far-right newspapers and politicians such as Robert Jenrick and Nigel Farage has two main aims, one overt, one covert.

The overt aim is to free us from the jurisdiction of the European Court of Human Rights. This, it is said, is necessary if we are to regain control of our borders. The main problem with this argument is that it is not true. In the populist mind, the court is a woke, liberal institution that subverts British common sense, traditions, values and interests.

In reality, it is, by and large, a fairly conservative court that protects traditional fundamental freedoms set out in a convention sponsored and approved by Winston Churchill. It is quite separate from the EU and the Refugee Convention.

The covert aim is to advance the self-interest of the individuals and businesses that own those newspapers and finance the Conservative Party and Reform UK.

The convention is a brake that places internationally accepted constitutional limits on those who manage to establish themselves in public positions of power. If you are looking to control the levers of government, in order to maximise your private wealth and profits, and buy British newspapers to that end, while domiciling yourself abroad, this is inconvenient.

Far-right populism, with its frequent attacks on the convention and the legal rights of individuals, has gained traction because of three factors in British society.

In the first place, many older people, white working-class communities and men feel excluded by the ascendant values and interests of the Russell Group-educated middle classes who dominate British political parties, professions, regulatory bodies and cultural institutions. As with blue-collar workers in the US, they feel angry, alienated, marginalised, and indeed despised by those in positions of power.

Secondly, anger and alienation have no significant legal or political effect unless and until they are harnessed by a leader as part of a political movement. Nigel Farage has ably exploited the space vacated by the Labour Party, and Reform UK are rapidly becoming the party that represents white working-class communities.

Thirdly, to achieve popularity, far-right populism needs newspapers to inflame the populace and stoke the fires. As in the case of Viscount Rothermere’s and the Daily Mail’s support for the Blackshirts in the 1930s (Hurrah for the Blackshirts!), there appears to be no shortage of newspapers willing to lend a hand.

The upshot is a vicious culture war between far-right populists and progressive opinion-shapers characterised by rampant misogyny, misandry, Islamophobia, racism against all races and intergenerational conflict.

As with Germany in the 1930s, such a dangerously polarised and increasingly unequal society is the perfect breeding ground for a further advance of a destructive populism that seeks revenge on those whose voices are ascendant. Things are falling apart.

All of this leaves human rights threatened. By human rights, I mean the basic rights and fundamental freedoms that ought to belong to every person in the world, from birth or conception until death.

William Hazlitt once observed that the love of liberty is the love of others, whereas the love of power is the love of ourselves. History demonstrates that those who seek power over others are often least fit to exercise it.

From time to time, great catastrophes, such as the concentration camps and a world war, have impelled nations to seek to protect their citizens against future encroachments on fundamental freedoms by enshrining them in a charter or treaty. The European Convention is the most famous example.

Contemporary European societies are not immune from further serious violations because the misuse of power and a capacity for evil are part of the human condition. Aleksandr Solzhenitsyn made this point very poignantly in The Gulag Archipelago:

“It was granted me to carry away from my prison years on my bent back, which nearly broke beneath its load, this essential experience: how a human being becomes evil and how good … Gradually it was disclosed to me that the line separating good and evil passes not through states, nor between classes, nor between political parties either — but right through every human heart — and through all human hearts. This line shifts. Inside us, it oscillates with the years. And even within hearts overwhelmed by evil, one small bridgehead of good is retained. And even in the best of all hearts, there remains … an unuprooted small corner of evil.” 

The rule of law and effective legal protection are necessary to protect individual liberty, not just from single, great encroachments but also from the gradual accumulation and misuse of power, which eventually results in great encroachments.

As Lord Chief Justice Lane said, loss of freedom “seldom happens overnight. Oppression doesn’t stand on the doorstep with toothbrush moustache and swastika armband — it creeps up insidiously … step by step, and all of a sudden the unfortunate citizen realises that it is gone.”

In Europe, human rights standards are set down in the ECHR. This is the modern-day Magna Carta, and together they are the two most important legal documents in European history.

The convention is respected throughout the world as the most successful human rights treaty ever devised. For 75 years, it has been pivotal in preventing the return of totalitarianism in Europe.

Shortly before he died in 1994, the philosopher Karl Popper thought that at no other time, and nowhere else, had people been more respected, as people, than in our society. Never before had their human rights, and their human dignity, been so respected, and never before had so many been ready to make great sacrifices for others, especially for those less fortunate than themselves.

That legacy is under threat. We must protect it. This necessitates returning to a more civil society. One in which the progressive cathedrals of today — the universities, professions, regulatory bodies and cultural institutions that shape discourse and opinion in the way the church did in medieval society — and far-right newspapers both acknowledge and respect all traditions, people and views, and not just their own. Time for a reformation. 

Anselm Eldergill was a judge. In 2024, he published a widely acclaimed, award-winning book on the European Court of Human Rights.