What was the point of the European Convention on Human Rights? – Dr Ed Bates

21 March 2011 by

The European Convention

 

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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

8 comments


  1. John Hirst says:

    Obiter J: I don’t have a problem with the UK seeking to appeal Greens and MT v UK to the Grand Chamber. However having seen the UK’s grounds they are very weak. I have a problem with the attempt to re-argue the points lost in Hirst v UK (No2), because there is no provision for this within the Convention.

    Whilst I do have some issues with the Court, Committee of Ministers and Council of Europe, nevertheless, the UK has signed up to it all and should honour its obligations. If the GC does not allow itself to be bullied and maintains its independence it should send the UK away with a flea in its ear!

    The UK has failed to honour its obligations for over 5 years and claims the right to not be the loser in a case it lost fair and square. It would be absurd to allow the loser to win because the loser is a sore loser. It would only result in heads the UK wins and tails you lose.

  2. ObiterJ says:

    It is a long time ago since I looked at how British Colonies were governed and how their law was made. [Remember “Hood Phillips” – Constitutional Law textbook – covered this subject at a basic level – perhaps you have to be a “certain age” to have read his books]. As I recall, Colonies were – (no doubt still are) – generally ruled under “Royal Prerogative” powers and the U.K. Parliament rarely intervened directly. Their law could be made by “Orders in Council” as opposed to requiring Acts of Parliament. Much of this was raised recently in the Bancoult litigation relating to Diego Garcia.

    http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/banc-1.htm

    This enabled the British Government – (sometimes in conjunction with the “colonial authorities” and sometimes not) – to do some quite dastardly things such as kicking an indigenous population out of their homeland. There are many other iniquitous activities in our interesting colonial history.

    Obviously, had the E Conv HR applied to Colonies then the British government would have fettered their powers considerably.

    I think that Mr Hirst knows that, personally, I support prisoner voting. However, there is no doubt that the government are entitled to refer Greens and MT to the Grand Chamber. We will have to see where this goes. I have little doubt that the government will be investing in some heavy legal artillery for this one. Clearly, the government will be hoping to persuade the court to go against their decision in Hirst No.2.

    When UK gets the chairmanship of the Council of Europe, I think that some other States will need to stand up to the British input which, if the rhetoric is to be believed, is about altering much to do with the court. Some things do need changing but great care is required and the court’s independence is cruicial.

  3. I am not a lawyer. I cannot and do not wish to compete with the learned minds applying themselves to the topic here and elsewhere. But a random thought…..no taxation without representation…….the colonists were distant from parliament legally, emotionally and physically. Current undercurrent of antipathy to many organisations “European” cannot in my simplistic opinion be separated from the “them & us” syndrome a factor which academics and practitioners involved in the minutae perhaps do not consider. Decisions unpalatable from Brussels or elsewhere might well be more acceptable were they founded on decisions closer to home.

    Just as the child who tidies his room when he wants to long after disobeying the instruction of a parent to do it NOW! the British public might not be intrinsically opposed to all Convention decisions were they seen to be closer to home.

  4. Ed Bates says:

    Thank you for your comments.
    Yes, there is no doubt at all that, from the British perspective, a key issue was that in 1949-1950 the UK remained a major colonial power. As I expect you know, the late Professor Brian Simpson brings this out superbly in his account of the origins of the Convention. The optional clauses were only accepted in 1966, when the UK Empire was a fraction of what it once was.

    As to the specific point about the right of prisoners to vote/ universal suffrage, I would need to check the later phases of the ECHR’s drafting. What I do clearly recall is that in the early stages of the negotiations the UK was strongly opposed to a provision in the Convention covering free elections and, indeed, the principal issue there was the ‘colonial’ factor. No such ‘right’ would be granted to the colonies, for obvious reasons. This was one reason why the ‘right to free elections’ is in the First Protocol to the ECHR, not the main text. The UK objected, but was ultimately prepared to accept the First Protocol for by then it had secured a drafting compromise whereby the Convention would only apply to metropolitan territories, unless a special declaration was made stating that it would apply to ‘territories for whose international relations [the State] is responsible’ (see today’s Art 56, ECHR). In other words, the UK could accept the ECHR and the First Protocol without having to extend them overseas (although, in fact, she did in the early 1950s!)

    Finally, on the ‘has the Court gone too far’ point, as I say, I think this applies to very few cases – indeed very few. My starting point there is that this is an international Court and this means that there are natural limitations as to how far it can go in setting human rights standards. I had in mind the points made by the minority in Hirst v United Kingdom. (Personally, I would welcome a change to the current UK law on prisoner voting – but that does not necessarily mean that the Strasbourg Court should initiate the change).
    With best wishes,
    Ed

    1. John Hirst says:

      In my view, the ECtHR in 2005 has given the UK, within the margin of appreciation, the face saving element of changing its own system.

      Interestingly, in Watkins 2006 HofL, Bingham at para 25 states: “We would now, of course, regard the right to vote as basic, fundamental or constitutional”…

  5. John Hirst says:

    Obiter J: It has been argued that in the Preparatory work of Article 3 of Protocol No1 to the European Convention on Human Rights, that the term universal suffrage was omitted on the ground that the UK did not want to give prisoners the vote.

    However, I have read the Travaux several times now and have been unable to find any reference to prisoners at all.

    On the other hand, Dominic Grieve has stated that from the archives in the Attorney General’s office that the UK’s concern was in relation to the colonies.

  6. mkp says:

    Surely one would have to agree with Ed Bates about the origins of the Convention and what it represented in the aftermath of World War II, but his “having gone too far” theory or point-of-view which disagrees with the benefits of the evolution of Convention jurisprudence can only serve to dilute the supremacy and dignity of western human rights law.

  7. ObiterJ says:

    A very interesting and informative post – thank you.

    The U.K. was not particularly keen on the Council having a court. Even in 1950, Sir Hartley Shawcross, the Attorney-General, was stating that:

    “we should refuse to accept the court or the commission as a Court of Appeal and should firmly set our faces against the right of individual petition which seems to me to be wholly opposed to the theory of responsible government”.

    Perhaps lying behind such statements was a reluctance, within government, to risk colonial matters coming under international scrutiny and, at the time, the U.K. still had many colonies. However, there was strong pressure on the U.K. to agree and the Convention was accepted but, until 1966, individuals could not petition from the U.K.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability disclosure Discrimination disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Family life fatal accidents act Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection hammerton v uk happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII hereditary disorder Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee inherited disease Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty in vitro fertilisation Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Sumption Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: