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.
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