The European Convention on Human Rights. It was drafted in the aftermath of the Second World War and the Holocaust in an attempt to protect the people from the State, make sure the atrocities committed would never be repeated, and safeguard fundamental rights. Recently it has been used as armour for the populist weapon, ignoring calls for greater scrutiny of their Rwanda Bill and the dangers it poses. They have recently found a sticky start as Ireland has launched proceedings in Strasbourg over the Northern Ireland Troubles Legacy Bill.
The United Kingdom played an important role in the birth of the ECHR, with British lawyers integral to the drafting of the text, and Winston Churchill a key early advocate. The rights we are all accustomed to come from the UK signing the Convention. Since the UK signed the Convention in 1951, it has protected us from things like torture, killing, and slavery and assures our freedom of speech, assembly, religion, privacy and much more.
The ECHR was ratified into UK domestic law through the Human Rights Act 1998, prior to this people would have to go to Strasbourg to enfource their rights. Now Human Rights cases are heard in domestic courts. Between 1951 and 2000 the European Court of Human Rights found many human rights violations by the UK Government against UK citizens.
It is important to distinguish the ECHR and the EU. They are not the same. People tend to chuck them into the same bracket, especially those of a Brexity pursuasion. The Government is currently using this Euroskepticism to bolster its pledges to ignore foreign courts and the ECHR, specifically the cases relating to the Rwanda Policy. The ECHR was launched by the Council of Europe. The Council of Europe is older than the European Union and not connected to it.
British politicians and lawyers were especially influential in the creation of the Council of Europe and the Convention. Also central to this endeavour was the future Conservative Lord Chancellor, David Maxwell-Fyfe, who as a member of the independent European Movement, was a co-author of the first draft Convention. This envisaged that each signatory would bind itself ‘to respect fundamental human rights within its territory and to submit itself to the jurisdiction of a European Court in respect of alleged infringements’
In May 1948 after the war had ended, the ‘Congress of Europe’ was held in The Hague, a gathering of over 750 delegates which included leaders from civil society groups, academia, business and religious groups, trade unions, and leading politicians from across Europe such as Winston Churchill, François Mitterand and Konrad Adenauer.
“In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law.”
Winston Churchill, The Hague 7 May 1948
The ECHR came into full effect on the 3rd September 1953. It was intended to be a simple, flexible roundup of universal rights, with meaning that could grow and adapt to society’s changing needs over time. Not only were ordinary people to be protected from abuse by the state, but duties were to be placed on those states to protect individuals. It has been hugely important in raising standards and increasing awareness of human rights across CoE member states, and beyond.
One of the founding aims was that member states take the first steps towards the collective enforcement of certain rights in the Universal Declaration of Human Rights. The ECHR was revolutionary, the idea of conferring enforceable rights upon individuals against sovereign states broke with traditional principles of international law that assumed that what a state did to its own citizens was shielded from international scrutiny or liability. It changed the essence of constitutions, the state wasn't the powerbase, but the people were.
It was one of the best Conservative policies that all the great, noteable Prime Ministers subsequently upheld. In 1989, Margaret Thatcher declared that the UK ‘was committed to, and supported, the principles of human rights’ in the ECHR and John Major reiterated this commitment in 1993. Modern Conservatism seems to believe that the state should decide on behalf of the person, and there should be nothing they can do about it.
Key Rights Granted and Protected by the ECHR.
Article 1 - The Protection of Human Rights and Fundamental Freedoms.
Article 3 - Prohibition of Torture.
Article 4 - Prohibition of Slavery and Forced Labour.
Article 5 - Right to Liberty & Security.
Article 6 - Right to a Fair Trial.
Article 7 - No Pubishment Without Law.
Article 8 - Right to Respect for Private & Family Life.
Article 9 - Freedom of Conscience & Religion.
Article 10 - Freedom of Expression.
Key UK Cases in the ECtHR
East African Asians v UK (14.12.1973)
The case concerned section 1 of the Commonwealth Immigrants Act 1968, which prevented British passport holders in East Africa - mainly of Asian descent - from entering or settling in the UK. In the aftermath of attaining independence many states introduced policies of Africanisation that deprived many Asian people of their livelihoods.
As a result, from the mid-1960s, increasing numbers of East African Asians - who had earlier taken UK citizenship and thereby renounced their right to local African citizenship - had exercised their right to come to the UK, fearful that the UK might decide to deprive them of their rights of entry and of residence.
The Commonwealth Immigrants Act was driven through all its parliamentary stages in just three days after a ‘brief but effective populist campaign’ led by Enoch Powell MP and Duncan Sandys MP to deprive the British Asians of their right to enter or settle in the UK.
The European Commission of Human Rights (see section 2.4) concluded that publicly to single out a group for differential treatment on racial grounds constituted a special affront to human dignity and that each of the applicants, as British citizens, had been subjected to such degrading treatment in breach of Article 3 of the ECHR.
In response, the UK Government created a special voucher scheme to allow entry into the UK for an annual quota of British Asians from East Africa, as refugees rather than as British subjects exercising their right of residence. Thus, although the applicants and the other British Asians were not restored to full citizenship rights, their rate of entry into the UK was greatly accelerated.
Osman v UK No. 23452/94 [GC], 28.10.1998
Ireland v UK No. 5310/71, 18.1.1978.
Judgements of the Court legally bind countries to stand by its rulings. The resulting case-law makes the Convention a powerful ‘living instrument’, whose decisions have influenced the laws and practices of governments across Europe. The UK Government is arguing that they should withdraw from the ECHR as the UK Supreme Court, and more importantly, the UK Parliament are Sovereign.
Michael Martin
Ireland has launched a legal battle over the Northern Ireland Troubles Legacy Bill. The act became UK law in September 2023. It looks to end legal proceedings relating to the Troubles by granting immunity to people who cooperate with the new Independent Commission for Reconciliation and Information Recovery (ICRIR).
Prime Minister Leo Varadkar said the attorney general's advice on the matter is "very strong" - and that the UK is "in breach of the UN Convention on Human Rights".When the act was passing through parliament, the UK's Northern Ireland Office said it believed the law was in compliance with the ECHR. This was due to the immunity being matched with the investigatory power of the ICRIR.
The UK government stated at the time that "there is some support for the concept of amnesties in ECtHR jurisprudence, which recognises that the use of an amnesty can further the objective of reconciliation".
This is a large scale example of the issues the Government is set to face with its controversial policy. As much as the Prime Minister might like to imagine there will be no 'foreign interference' with the processes, there already is. It would be a great shame, and deeply disturbing move for the UK to leave the ECHR, especially by being opaque with the facts.
The Human Rights Act has been updated and changed, and there are sensible calls for some reformation, but to blindly revoke a persons human rights at the whim of an ignorant policy is a dangerous precedent to set. The Government should face the future and consider their actions. There is little evidence that this policy will actually achieve the aims it has set out.
If the UK withdraws from the ECHR it would be the first to do so voluntarily. The other European states not signed up to the ECHR are Russia and Belarus, perhaps not the international role-models a modern democracy. Without the protection of the Human Rights Act or the ECHR, the UK Government would have the power to do whatever it wants to individuals’ rights with no threat of consequences.