Voters back courts; not so sure about ECHR

Once again, government sources are suggesting the UK should leave the ECHR if it is used to block its Rwanda policy. Former advisor to Theresa May and newly selected candidate Nick Timothy has claimed it would be easy to do[1]. The liberal centre and left combine horror at the proposal with the belief that it has no traction.

Voter views are by no means as clear cut. On the one hand, England’s voters overwhelmingly back court action to constrain illegal acts by government and parliament. According to new polling from the Centre for English Identity and Politics[2], 77% agree that ‘the courts should be able to stop a UK government or parliament acting illegally’. Only 7% disagree. There’s little sign here that voters want to assert the sovereignty of parliament or the autonomy of the executive over the courts.

On the other hand, attitudes towards the deployment of the ECHR are much less clear cut. Faced with the proposition ‘the ECHR should not prevent a UK government acting in what it sees as the national interest’ only 30% disagree. Many more (45%) do not want the ECHR to block government action, and 25% neither agree nor disagree.

The two questions are obviously framed differently[3], which will have influenced the results to some extent. But the differences between overwhelming support for the principle of court intervention and the underwhelming endorsement for the use of the ECHR is too stark for the framing to be a simple explanation of the change. What’s more, ahead of a general election, we should be interested in the way voters may respond to the ways issues are framed by political parties.

How do we make sense of this apparent contradiction? For many on the liberal centre and left the two questions are more or less identical. To them, the ECHR, which after all was enacted into UK law by an explicit decision of the UK Parliament, forms part of the body of law on which we should expect the courts to draw. But, as I have written previously, there is very little evidence from past polling that this view of the ECHR has ever gained broad popular acceptance. What was previously a body of law that drew on parliamentary statute and the accretion of common law was supplemented by a series of legal principles whose meaning only becomes apparent once applied by the courts to a particular set of circumstances. Whether this represents a stark break with previous legal tradition or something more akin to an evolution of it is a debate best left to jurists. In parts of the population, however, the perception that the ECHR is something ‘foreign’ and outside our traditions remains strong.

This becomes clearer when we look at how England’s different identity groups respond. (In this type of polling we can understand national identity as a broad cipher for how different groups see nation, national democracy, sovereignty, and the Union. It’s not about flags and football).

Those who emphasise their English identity are far more sceptical about the role of the ECHR. 63% of the ‘more English than British’ oppose the ECHR blocking government action while 33% of the ‘more British than English’ do so. Positive support for the Convention is strongest amongst the ‘more British than English’ (50%) and weakest amongst the ‘more English’ (15%).

What might this mean for the election?

Three things stand out to me from this data.

Firstly, ‘Convention scepticism’ is highest amongst the identity groups that Labour has found it most difficult to win (though it has made significant gains across all groups). I’ve written this polling up recently. English identifiers who previously voted Tory are also more likely to have moved from Conservative to Reform, Don’t Know and Won’t Vote than to Labour. The ECHR appears to be an issue that might help win back the ‘low-hanging fruit’ of previous Conservative voters who have so far resisted the appeal of Labour, the LibDems or the Greens.

Secondly, support for the ECHR is by no means a consensus issues on which ‘all decent people’ agree. Fewer than one in three voters positively endorse the ECHR in providing a block to government actions. Perhaps just 30% of the population are obviously open to a defence of the principle that it is legitimate for the provisions of the ECHR to be used to block government action, particularly in areas like asylum policy.

Third, ‘convention-scepticism’ is by no means limited to a hard-core Brexit true believing minority. It has a significant if smaller presence amongst all identity groups. Assumptions that criticism of the ECHR will be anathema to all former Tory voters in ‘Blue Wall’ seats look overstated at the very least.

It’s not clear whether any of this will make the ECHR an important election issue even for those most who dislike the ECHR. While more voters support the Rwanda policy than oppose, there is also considerable scepticism about its efficacy. A major problem for the government is its incompetent mishandling of immigration. It may well struggle to persuade voters that everything would be working fine if it was not for the ECHR[4].

What the government might hope, as pollster James Johnson suggests, is that supporters of the ECHR over-reach themselves. By talking about critics as though they are all beyond the pale, such supporters could feed the wider cultural divide that the current government is so keen to entrench.

It’s important not to build too much on this limited polling. But perhaps a defence of the ECHR should stress how it was enacted into UK law by the UK parliament (and much less on it being a shared international convention); the principle that no government should be above the laws made by parliament; and focus on how it has protected individual citizens against an overbearing state (and much less on the protection of asylum seekers).

Prof John Denham

Director, Centre for English Identity and Politics

University of Southampton

[1] He also thought the same about Brexit.

[2] Polling conducted by YouGov 26/27 June 2023, 1716 voters in England

[3] One is framed as a positive choice and the other a negative; and the scope is different.

[4] Assuming for the moment that the Supreme Court over turns or significantly limits the policy