Why we would be mad to leave our European Convention on Human Rights
3 September 2013
Six decades ago today, the European Convention on Human Rights came into force. It all started brightly, as a post-war, British-led pact against Fascism and Communism. Now, human rights are under heavy, relentless attack. Politicians, press and public seem to have an endless appetite for tales of human rights gone wrong. The Justice Secretary has recently said “all options are on the table” for “major change” on human rights, and it is likely that the future of the ECHR will be a major general election issue in 2015. In short, the UK may soon withdraw from the longstanding international human rights system which it was instrumental in creating.
That would be a great mistake. It is often said that human rights are something foreign to the UK, whose proud common law tradition negates the need for these “European” protections. But even a brief consideration of the ECHR’s history shows how wrong that perspective is. The ECHR was a fundamentally British document which has had an enormous, beneficial effect. We should be proud of its history, and would be quite mad to reject it now, six decades on.
The history of human rights in the UK is a surprisingly short one, at least in their current form. The ECHR born in 1950 and came into force in 1953. Its drafters were looking back, to fascism and the atrocities of the Second World War, but at the same time forwards, to the Communist suppression of Eastern Europe. As Luzius Wildhaber, the first President of the European Court of Human Rights has said, there was a “need, for protective purposes, after the iron curtain had come down, to make a pre-emptive strike against the menace of new tyrants”. And as one founder, Pierre-Henri Teitgen, explained:
[d]emocracies do not become Nazi countries in one day. Evil progresses cunningly… one by one freedoms are suppressed, in one sphere after another. Public opinion and the entire national conscience are asphyxiated. And then, then everything is in order, the ‘Führer’ is installed and the evolution continues even to the oven of the crematorium. It is necessary to intervene before it is too late.
But how to intervene? The solution was a list of rights which were in 1950, and remain now, incredibly simple and clear. Indeed, when reading them, it is hard to understand what all the fuss is about. The right to life, to not be tortured, to not be enslaved, to liberty, to a fair trial, to family life, to religious freedom, to freedom of expression, to freedom of association, to not be discriminated against; amongst others. “Which of these rights” asked Lord Bingham, a former chief Law Lord, “would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British?”
They certainly look British. It cannot be overstated how fundamentally British the ECHR is. The included rights were based largely on those developed by the British common law, reaching back to the 1215 Magna Carta and the 1689 Bill of Rights. After the Second World War, imposing traditional British values on foreign legal systems was seen as part of the victor’s spoils. British politicians “made a huge contribution to the drafting”, said Lord Bingham, “reflect[ing] values which we in this country took for granted and which had, we thought, been vindicated by our military triumph”.
British politicians were instrumental in drafting the ECHR, building on the 1948 Universal Declaration of Human Rights and older British common law liberties. Sir David Maxwell-Fyfe, a Conservative politician and lawyer, drafted much of it after he had joined the European Movement on the invitation of Winston Churchill. Speaking at the Nuremburg trials, where he prosecuted and cross examined leading Nazi Hermann Göering, Maxwell-Fyfe said there that “some things are surely universal: tolerance, decency, kindliness”. After Nuremburg, he would distill that three-part formula into a universal legal code, chairing the committee of men who drafted the ECHR. They produced a list of basic rights ‘without which personal independence and a dignified way of life cannot be ensured’, as said Pierre-Henri Teitgen, a founding father. The ECHR was, in essence, a blueprint for democratic society.
Given its central role, the UK unsurprisingly joined the eight states which ratified the ECHR at the first opportunity in 1953. But for the next two decades the Convention amounted to little more than a grand but unenforceable statement of rights, its so-called ‘sleeping beauty’ years.
800 million people
Today, the ECHR’s defining feature is the right of individuals to apply to the European Court of Human Rights in Strasbourg, to seek a ruling on whether a member state has violated a Convention right. All 47 ECHR states have accepted the jurisdiction of the Court and agreed to abide by its rulings, protecting some 800 million people. But the Court did not even exist until 1959, and the UK only signed up to its jurisdiction in 1966. Other major European states followed later. It was then only from the mid-1970s that the Court began to find its stride, with a run of high-profile judgments against states.
It is hotly debated whether the ECHR’s founders wanted it to evolve from a pact against totalitarianism into a European Bill of Rights, but it is clear that by the 1980s that evolution – even revolution – was taking place at speed. By the 1990s, the Court’s President Rolv Ryssdal argued that it was ‘gradually assuming the mantle of a European constitutional court’. In 1998 the Court went full time, and today it is unrecognisable from the anaemic institution which was born in 1959. Consider these startling statistics: in the 38 years from 1959 to 1998 the Court delivered a total of 837 judgments; in 2012 alone it decided almost twice that amount. And, whilst in the 1970s the Court was attracting a handful of applications each year, by the end of 2012 it had a backlog of 128,000 cases.
Back in the UK, the New Labour landslide of 1997 meant that their election manifesto promise to incorporate the ECHR into domestic UK law – to ‘bring rights home’ – would be realised. The Human Rights Act 1998 came into force in October 2000, meaning that almost all of the ECHR rights could be enforced against any UK public authority. Rather than having to go to Strasbourg, people in the UK could go to their local court to claim that their human rights had been breached. And public authorities would now have a legal duty to comply with the ECHR in everything they did.
Should we stay or should we go?
In the 60 years since its birth the European Court of Human Rights has undoubtedly travelled beyond the intentions of at least some of its founders. As Strasbourg judges are fond of saying, the ECHR is a “living instrument” – no longer just a defence system against extreme regimes but also a burgeoning European Bill of Rights.
But that trend has been apparent since at least the mid-1970s; recent complaints from the UK have been based more on aversion to implementing a few judgments (most visibly over prisoner votes and Abu Qatada) than any considered analysis of the Court’s decisions.
In reality, the Court’s effect on the UK is small. It produces around 10 critical judgments against the UK per year, compared to hundreds generated by local judges. Thanks to section 2 of the HRA, Parliament has made clear to UK judges that it need not follow Strasbourg, only “take into account” its rulings. And as almost any judge (except perhaps Lord Hoffmann) would tell you, those rulings are not so perverse that we must leave the system entirely, risking the signals that such a move would send to those whom really need (and we really need within) the Convention system, such as the ex-Communist states. As Lord Dyson, the head of the Court of Appeal, has said:
It is true that some of [the court’s] decisions have been criticised with justification. But (dare I say it) the same can be and is said of some of the decisions of any court, including the Supreme Court. On the whole, the case-law of the ECtHR has strengthened and enriched our own human rights law.
The backlog is a problem but the only sensible way to approach it is through structural reform, something which the UK and others have been pushing hard – with some success – over the last two decades. There is much still to do, but this is a practical issue, not one of principle, and certainly not a reason for leaving the Court altogether.
The ECHR is not perfect, but it is one of the great post-war international institutions – a gift by Britain to its European neighbours. And, generally speaking, it works. To those who want to leave it because it is “European” are misreading history. Those who want to leave because its judgments are barmy are overstating their case. Just for a moment, we should stop squabbling and appreciate what a success our ECHR has been. Happy 60th.
With thanks to Dr Ed Bates, whose fantastic book – The Evolution of the European Convention on Human Rights – has been a great help in writing this post.
Sign up to free human rights updates by email, Facebook, Twitter or RSS
Interesting stuff here – with fair points made on all sides. The major argument for keeping the convention is, to my mind, the principle of the sovereignty (or supremacy) of Parliament, Without the convention, with restrictions on judicial review and restrictive legal aid, I would fear for the future of liberty in this country. Few say it, but I have the view that liberty is definitely under deliberate attack in this country.
I draw attention to a good piece written for the British Institute of Human Rights competition celebrating the 60th birthday of the convention:
Oh dear. There you go, again, Adam.
When I read defenders of the ECHR ask “Which of the rights would we wish to discard?”, I know they aren’t listening (again). The growing opinion against the Convention is not directed at the individual rights. It is directed at the way in which they are interpreted by the courts.
As Lord Dyson said in 2011: “There is clearly nothing wrong with human rights or with the text of the Convention. It is, of course, possible to criticise courts (whether Strasbourg or domestic) for the way in which they interpret the Convention and to complain about individual decisions made on the facts of particular cases. [Criticism] lies in the fact that Strasbourg has applied the margin of appreciation too narrowly and without a sufficient understanding of reasonable domestic ideas.” (See final para of http://www.supremecourt.gov.uk/docs/speech_111103.pdf).
It is plain that neither the drafters of the Convention, nor the original signatories, envisaged votes for prisoners as one of the basic human right they were enshrining. And it is equally plain that those who remain opposed to giving prisoners the vote – I am not one of them, by the way – are not against the passage in the Convention requiring free and fair elections at regular intervals. They simply argue that the requirement does not mean that the vote should be extended to more prisoners than are already enfranchised.
A similar point applies to those – and I do include myself in this group – who are disappointed that the right to a family life can be used to override deportation. (“No, Sir, you are not entitled to live here – unless, that is, you can get one of the locals to fall in love with you. Oh, you’ve done so? And they have a cat, you say. In that case, enjoy your stay. Probably best not to mention the cat again, though. Leads to awkward misunderstandings. And I’m not making that up.”)
Human rights are too important for us to have anything less than a grown-up debate about their implementation and application.
I wholly agree. I’m puzzled that, nearly eight years after Hirst and all the complaining about it*, we have yet to see “any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote.”
There is a Voting Rights (Prisoner Eligibility) Bill in ‘pre-legislative scrutiny’ but it has been there since November 2012 (about eight months).
* including one D. Cameron who said something like “the thought of giving prisoners the vote makes me sick.”
Re prisoners voting, we’ll see what the Supreme Court says in McGeoch. And if the SC holds that denying a prisoner the right to vote in a European Parliament election contravenes EU law, what will the Government do then? It can’t simply ignore EU law.
Of course, it might never happen – but once a case gets as far as the SC, the outcome cannot be a foregone conclusion.
“The included rights were based largely on those developed by the British common law, reaching back to the 1215 Magna Carta and the 1689 Bill of Rights.”
Claims like this are the kind of thing that sound like they ought to be true, but when you look at the detail reveals itself to be complete claptrap. If you bother to look at Magna Carta or the 1689 Bill of Rights, they don’t look anything like the Convention. Similar rights are simply not to be found there.
Similarly, if you think about what the Convention does, it restricts the sovereignty of signatory states to act inconsistently with the various human goods there enumerated, did the common law recognise similar restrictions?
The answer, as any competent lawyer should be able to tell you, is no. It did not, and does not restrict the sovereignty of the state at all. Say there was legislation mandating the restriction on the ability to marry freely (inconsistently with art 12). What would the common law have to say about the matter? Nothing. mainly because the Convention is an instrument of public international law, and none of the things you mentioned are anything to do with that.
The stupidity of claiming as this writer does that the Convention is all just based on British law anyway is just not that it is patently untrue, but that it plays into the hands of those who would opt out of the Convention. If all these rights were truly already there, what would be the difficulty with just opting out then?
For a history of the Convention, go read Brian Simpson’s Human Rights and the End of Empire.
The Convention has to be defended based upon its merits today, not romantic rubbish about the world post WW2.. That requires a careful examination of what it does. Bingham’s question sounds like a knockdown, but again it is not when you think about it. The issue is whether the extent of the law’s protection of say, an individual’s right to education, should be determined by elected politicians or unelected judges. It is hardly a shock that the politicians tend to think they are the more appropriate people to resolve this question. the opponents of the Convention are not suggesting that there should be no right to freedom of speech etc, but rather have a different view as to who should determine its scope. Lawyers, naturally enough, think they should be the ones answering these questions.
People who are neither politicians nor lawyers may look with scepticism upon the claims of both. Particularly when they make silly, ignorant claims about the Convention.
I don’t think the writer was claiming that the entire nature of the convention is based on british common law, but simply that, and I’ll quote, ‘The included rights were based largely on those developed by the British common law, reaching back to the 1215 Magna Carta and the 1689 Bill of Rights.” Therefore, while the restrictions imposed by the convention on the sovereignty of signatory states are relevant to take into consideration when contemplating the convention as a whole, there is no doubt that pre existing British common law rights were subsequently enshrined in the convention.
Furthermore, I disagree that the Convention should be solely defended on its merits today and not by the so-called romantic rubbish about the world post WWII. Both considerations are highly relevant. To ignore the foundations and rationale behind the creation of the convention would trivialise the importance of the convention itself. Regardless of which state contributed the most in terms of the body of the convention, it was created after one of the worst atrocities suffered by mankind to this day. To overlook this and simply examine the convention at face value would be like positively surveying a beautiful house built on sand.
The convention as a ‘living instrument’ must be regarded taking into account its current merits, shortcomings and interpretation while remembering its initial significance- where it was one of the first steps towards obtaining and maintaining peace and a minimum level of protection for its signatories’ citizens.
” there is no doubt that pre existing British common law rights were subsequently enshrined in the convention.”
It is not just that there is ‘doubt’ about this, as a matter of positive law it is demonstrably wrong. Just look at the rights in the Convention. How exactly are you claiming that the common law prevents Parliament infringing any of them? If we abolished the HRA tomorrow, and withdrew from the Convention, how would it be possible as a matter of law to restrain the State from, say, severely cutting back freedom of association?
If you actually look at the text of Magna Carta or the Bill of Rights they don’t look anything like the Convention. Unsurprisingly, as anyone who actually knows anything about the drafting of the Convention would know they did not form the basis for it.
i would expect lazy claims about what the common law is from a layperson writing in a newspaper. From a lawyer, presumably running a blog to show off his or her professional competence, it is shockingly bad.
This comment, although accurately reflecting the line ‘A little learning is a dangerous thing’, inadvertently makes a good point. Lawyers, quite rightly, want to protect the ECHR. They also note that much of the media-stirred hatred of it links in to anti-European narratives, and the idea that ‘them foreignerz is imposing their laws on us’. In reaction, they stress the British hand in the convention.
This is laudable, and as a PR move may well be wise. But lawyers must be careful not to go too far, and buy in to the dreamy myths of Britain’s self-narrative (Britain never tortures; Britain is best at free speech; Britain is the source of the world’s rights; etc.). I think Poole’s rebuke to the narrative of your ‘They certainly look British’ paragraph (in (2005) 32(4) J Law & Soc 534, 540-1) is accurate: the British were significant in drafting it, but they were not dominant; these rights were not British, but universalist (as your following paragraph concedes, contradictorily); and Britain was far from the bastion of HR throughout the twentieth century that this narrative suggests.
Ah – it may massage the truth, you reply, but it does so for necessity. But will acknowledging this historical reality let Murdoch et al. win and bring down the Convention? I think not, for two reasons. One – if you’re going to accuse others of ‘misreading history’, you are simply asking for trouble if you don’t toe the historical line absolutely. Two – there is enough truth in what you have said to make a persuasive case for it being significantly British, even if not ‘Britain’s gift to Europe’.
And there is a third reason we ought to acknowledge the reality rather than pretending the ECHR is British. There is a disturbing tendency on the left to buy into these patriotic narratives so as to subvert the right: yes, we’re part of the EU, but only for the British national interest; yes, we’re part of the Convention, but this is really a mirror of our amazing history of rights. This only adds fuel to the very (ahistorical) narratives that are the problem to begin with. It also means believing an untruth, or at least professing to. The left has enough rationality and truth on its side: let it stick to it.
Thanks for the comment. You have misrepresented my argument.
First, I do not claim the ECHR is derived from Magna Carta or the Bill of Rights. Merely that they are influences. Which they plainly are.
Second “claiming as this writer does that the Convention is all just based on British law anyway” – where do I claim that? It is not all just based on British law. But it is strongly influenced by British law, unsurprisingly given who wrote it and how it arose.
Third, “it restricts the sovereignty of signatory states to act inconsistently with the various human goods there enumerated, did the common law recognise similar restrictions?” This is a completely different point. The rights in the ECHR are influenced by the common law, the method by which they are enforced is by way of an international treaty, which is hardly alien to our legal system. In any case, states can leave the ECHR if they like. The impact on sovereignty is therefore limited.
Fourth, “The Convention has to be defended based upon its merits today, not romantic rubbish about the world post WW2..”. The second half of the article defends it on its merits today, and engages with the issue over evolution/revolution. Did you read to the end?
Fifth, “opponents of the Convention are not suggesting that there should be no right to freedom of speech etc, but rather have a different view as to who should determine its scope”. I am glad you are so sure about that. My suspicion is that many politicians would like to be determining those issues themselves. Which is the point of the HRA/ECHR.
Yesterday was the 60th anniversary. I thought it would be an excellent opportunity to remind people (and myself) of the history of the ECHR. Given how ignorant of history some of the ECHR’s critics are, I think that is useful exercise.
1. “I do not claim the ECHR is derived from Magna Carta or the Bill of Rights. Merely that they are influences. Which they plainly are.”
Further and better particulars please. As a matter of history, that is just wrong (read Simpson’s book). As a matter of positive law it is also untrue: just look at the texts. They do not remotely resemble each other, unsurprisingly as the Convention is a pubic international law instrument binding on signatory states, and Magna Carta and the Bill of Rights concerned domestic constitutional issues to do with the English (not British as you stated) monarchy from centuries before.
2. You ask where you claim that the Convention was based upon British law. That would be in the fifth paragraph., I quote:
“The included rights were based largely on those developed by the British common law, reaching back to the 1215 Magna Carta and the 1689 Bill of Rights.”
3. “The rights in the ECHR are influenced by the common law,”
Again, how, with particulars? How, for example, are you claiming that the common law gives me a right to freedom of association against the UK state (absent the HRA)?
4. If your purpose is, as you say, to recount the history of the Convention, then it would be better to get it right. The fairy story is that the Convention was somehow a product of British law, where after WW2 the British thought it would be good to enshrine some common law principles into the laws of the poor benighted continental European countries. If however you actually know anything about the common law, you must know that is untrue (even if you have never studied the drafting history of the Convention). In the UK (unlike say the US or modern day Germany) we have Parliamentary Sovereignty. In the late 40s and 50s, Dicey still reigned supreme in UK constitutional theory. The idea that the restraints on State sovereignty in the Convention (which I approve of by the way) were in some sense influenced by the common law is not just doubtful, but ridiculous.
Another way of showing the folly of your claims about the common law in general, and Magna Carta and the Bill of Rights specifically, is to look at the constitutions of other countries, in force at the time of the drafting of the Convention. It is amusing to look at the Soviet Constitution of 1936
and the Weimer Constitution of 1919 (technically in force throughout the Nazi period)
In these documents you do find constitutional rights of citizens against the state that are strikingly similar to the rights individuals have against their states under the European Convention (freedom of expression, association, religion, education, privacy etc etc).
Just looking at their texts, it is far more persuasive that the constitutions of other European countries influenced the Convention’s text than did the British Constitution or English common law neither of which give individuals any rights against the State of this kind.
The 60th anniversary of the European Convention on Human Rights is something to be celebrated.
SIR – Today marks the 60th anniversary of the European Convention on Human Rights coming into force.
As leaders of civil society organisations, we think six decades of ensuring human rights for 800 million people across 47 countries in Europe is something to be celebrated. For our organisations, and the people we work with across the United Kingdom, the rights and freedoms set out in the convention are fundamental in ensuring all of us can live with dignity, respect and equality, safe in the knowledge that there are checks on government power.
This “other jubilee” is also a time to celebrate 60 years of Britain’s commitment to respecting, protecting and fulfilling the rights in the convention. Britain played a pivotal role in setting down our hard-won human rights in the convention in the aftermath of the Second World War. As Winston Churchill said, when calling for a human rights charter, there is a need for a set of rights “guarded by freedom and sustained by law”. We call on our political leaders to secure our human rights heritage and stand firm on Britain’s commitment to the convention, and its expression in the Human Rights Act.
| Promote ECtHR: Six decades of human rights support! http://fb.me/6soy9S9gp
You must log in to post a comment.