On 8 March 1951, sixty years ago this month, the UK ratified the European Convention on Human Rights (ECHR). Two things are often said about what was expected of the Convention back in 1951.
First, it was only ever intended to establish a system that would protect against the types of severe human rights violations witnessed during the War. Consequently (and secondly), the Convention system was never intended to become what it has today, its Court now sometimes acting like a type of Supreme Court for Europe in the field of human rights.
Both points are relevant to current day debates about the legitimate role of the Strasbourg Court. To what extent then are they accurate?
It is very clear that the view in 1951 was that the ECHR system should protect against only very serious human rights infringements. Pierre-Henri Teitgen, one of Convention’s founding fathers, argued in 1949, for example, that the Convention would address, ‘a list of rights and fundamental freedoms, without which personal independence and a dignified way of life cannot be ensured’.
With respect to the second point above, however, it was appreciated in 1951 that the Convention system could develop beyond this very fundamental starting point. Teitgen was a member of the “European Movement”, a body that wanted to establish an ECHR as part of a new European Union. The first proposals for a Strasbourg Court were, in fact, for a “European Court of Justice”, not, a “European Court of Human Rights”.
Moreover, Hersch Lauterpacht, Professor of International Law at Cambridge and one of the leading intellectual forces on human rights, had some striking things to say about the Strasbourg Court. He emphasised that it would have indirect powers of review over British laws, including Acts of Parliament. He even drew comparisons between a future ECHR system and the American Supreme Court:
the range and number of decisions given every year” by the latter was “a reminder of the vast—and, to some, alarming—possibilities of international review.
There words were written in February 1950. The States themselves, led by the British government, subsequently watered down the proposals for the Strasbourg enforcement regime. By November 1950, when the ECHR text was complete, the Court’s jurisdiction had been made subject to each State’s acceptance of an optional clause, as was a State’s acceptance of the right for individuals to petition Strasbourg (in fact, the European Commission of Human rights). When the UK government ratified the ECHR in March 1951 it accepted neither of these optional clauses, and it looked like the Court might never come into being as eight States were required to accept it before it could be instituted.
Needless to say, that was not the end of the story. By 1958 nine States had accepted the Court’s jurisdiction, so it came into being in 1959. Around this time, Sir Humphrey Waldock, the British member (and President) of the European Commission of Human Rights delivered a fascinating speech.
The Convention, he said, had two possible identities. It could be looked upon as a collective pact against totalitarianism; but it could also evolve into a type of European Bill of Rights. Everything would depend on whether the States accepted the optional clauses. It was clear how Waldock hoped things would develop. He began his speech with the words, “I propose to sketch for you a broad picture of the Convention as a European Bill of Rights – a Bill of Rights for free Europe. It is that aspect of the Convention which is supremely important”. Waldock noted that the Convention should be of “outstanding interest to English lawyers”, for the “famous unwritten constitution of Great Britain has never been quite so unwritten as some people have supposed”.
Skipping forward two decades, in 1979 Professor Waldock delivered another speech, this time at celebrations marking the Court’s twentieth anniversary. By then most States had accepted the optional clauses, and Waldock reflected upon how recent Strasbourg case law had highlighted the constitutional nature of the Convention. Indeed, after 1975 the Court delivered a series of landmark judgments, including, for example, Golder v UK (1975), Engel v the Netherlands (1976), Tyrer v UK (1978), Marckx v Belgium (1979) and Sunday Times v UK (1979). The Strasbourg system was coming to life, and the Court was starting to demonstrate its potential to act a bit like a European Supreme Court in the field of human rights.
The UK had accepted the optional clauses in 1966, with little appreciation of what would follow a decade later. However, the clauses were accepted for limited periods of time. On successive occasions in the 1970s, 1980s, and early 1990s, therefore, the UK had the opportunity to withdraw its acceptance of these key aspects of the Convention system – but she didn’t.
The relevant Whitehall documentation for the 1970s can now be consulted at The National Archives. Very briefly, it reveals a strong element of British sour grapes (especially at the Home Office) at the way the Convention system had evolved, but that in the final analysis there was more political advantage for the UK to remain committed to the Convention system than withdraw from it.
So, for example, the UK’s continued acceptance of the optional clauses was debated by the Thatcher Cabinet in late 1980, when it was reported that the Court was “interfering with the exercise of parliamentary sovereignty” and “limiting [the UK’s] freedom of action” (accusations which are being repeated today). Nonetheless, in 1981, as in subsequent years, the optional clauses were accepted for five more years.
Much more could be said about these events, as well as those that followed. For example, the UK tried in vain to ensure that the right of individual petition would remain optional when Protocol 11 to the ECHR was negotiated in 1994. The Court, it was said, had too much power, and the implied threat of non-renewal of individual petition would act as an appropriate check on its authority. However, the UK was virtually alone in making this point, it lost the argument; with Protocol 11 the right of individual petition became compulsory.
Today it can be argued that in some cases (very few in this author’s opinion) the Court has gone too far, given its status as an international institution. What this short post has tried to demonstrate is that the idea for the Convention as a type of European Bill of Rights was there from the start. Moreover, when it became a reality for the British government, from the early to late 1970s onwards, to its credit it remained committed to the Strasbourg system, and it has done so since.
Ed Bates, Senior Lecturer in Law, University of Southampton. Author of ‘The Evolution of the European Convention on Human Rights’, Oxford University Press, 2010.
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