Tom Tugendhat, launching his Conservative leadership bid, said on BBC Today that he would be open to taking Britain out of the European Court of Human Rights. He's not the only leadership candidate to back this – Kemi Badenoch made a case for leaving too. Tugendhat emphasised that institutions were there to serve us, not us to serve them; and we should be willing to abolish them if they no longer suited.

In that, I agree with him. Institutions, from monarchy to NHS or local government, should all pass that test. But anyone suggesting that we replace these – or the court – must assess what they are for, and how to replace whatever useful function they may have.

What is the ECHR’s point? It is more than just a question of being pro- or anti-human rights. Not many politicians openly declare themselves to be against human rights, even if in practice their enthusiasm can sometimes be hard to spot, or takes a peculiar turn.

Kemi BadenochKemi Badenoch (Image: free)

The real point of the court, and the convention it interprets, is to be a safety net. It provides a guarantee for rights in each member country, whatever the line being taken by national governments and parliaments at a given moment.

Safeguarding human rights involves at least three pillars:

• A clear, relatively durable, list of rights

• An independent, relatively durable, set of interpreters

• A means of ensuring respect for the rules and court findings

If we replaced the ECHR, how would we keep these pillars? This is particularly important for the UK. Alone among convention members, we have no single written constitution setting out our rights.

We can, and sometimes do, cite the Arbroath Declaration (“Freedom is a glorious thing…”) or, in England, the Magna Carta (jury trials and the Crown’s subjection to the law), or the 1689 Claim of Right or England’s parallel Bill (both including important rights for Parliament, but terrible things about Catholics), or the Acts of Union.

None of these are clear sets of rights. Only the Claim/Bill of Rights and the Acts of Union are enforceable in a court – and Parliament can amend them: it recently amended part of the 1801 Act of Union with Ireland after the post-Brexit Windsor Framework. It was unpopular with most Northern Ireland Unionists, but Parliament’s right to do it was predictably confirmed by the Supreme Court.

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Our system allows a government with a disciplined parliamentary majority to legislate anything. Rwanda is safe. (It may be, but the recent legislation required courts to accept that it was, whether true or not). Day is night. Thou shalt commit adultery, following the infamous proof-reading error in an early printed Bible.

There is some safeguard in the relatively independent House of Lords – but nothing to stop a Prime Minister packing it with hundreds of supporters and, if it became elected, it might well become less independent of party controls.

Parliament could replace the convention with a new set of rights – British Rights. But how could this be more durable or entrenched than any other Act of Parliament? An advantage of the ECHR is that it is entrenched. It isn’t in the power of our, or any other, government to make quick, convenient changes to it.

What about the interpreters of whatever rights we have, whether British or European, or both? The last Polish Government gave a masterclass in how to pack a Supreme Court.

In Britain, we appoint judges, albeit in a fairly obscure way, but it is a way that results in judges who are remarkably trusted across the political and social spectrum. They are almost uniformly seen as independent, uncorrupted and even non-political.

But there is nothing to prevent a grumpy British government with a parliamentary majority following Poland, and appointing judges on the basis of their sympathy for governments and government policy.

This is sadly not far-fetched. In very recent times it has been specifically demanded by some major English newspapers. It is more difficult for the British, or Polish, or any single government, to change ECHR judges.

Enforcing courts’ rulings against governments can be difficult. And it is possible for countries to opt out of aspects of how the convention applies to them. But the countries which take human rights seriously and which have been at the convention’s core – at the moment including us – accept that the court can penalise them if they don’t obey its findings. This includes its tiresomely effective power to impose fines which increase daily until the recalcitrant government complies.

If the ECHR doesn’t serve us, Tugendhat and others are right to say we should be willing to replace it. But he needs to set out how we replace it effectively enough to safeguard our rights.

For Britain, that looks like a written constitution, somehow created in way involving more than just Parliament. I am up for that. But it would be a radical constitutional revolution – and a long way from the Conservative Party’s debate on the ECHR.

George ‘Geordie’ Fergusson is a former diplomat. He was the British High Commissioner to New Zealand and Samoa, governor of the Pitcairn Islands, from 2006 to 2010 and governor of Bermuda from 2012 to 2016