A British Gift – the ECHR

A British Gift – the ECHR

What is it about the European Convention on Human Rights which so riles some on the right (and, if reports are to be believed, the PM’s closest advisor)?

  • It cannot surely be its name. Can it?
  • A belief that it is a Brussels creation imposed on a reluctant Britain? Some may think this but politicians should know better. Even the PM said – (in 2016 so he may now have changed his mind) – “Keep the European Convention, it’s a fine thing… We wrote it.
  • The desire of EU negotiators to make Britain’s retention of it a condition of any FTA. There the objectors do have a better point. The EU gives the impression it has not quite grasped that Britain is no longer within its legal orbit. Nor that it might be better for Britain to want to stay within the EHRC’s provisions rather than feel forced into this to appease the  EU. Still, if there is no intention to leave it, why make such an issue of it? Promising to stay in something we want to stay in anyway is not exactly a concession. The suspicion is that this government does not want to be bound by some of the ECHR’s provisions. It may be using this link with the EU negotiations to justify severing the EHRC’s remit. Much easier, after all, to sell such a change as “standing up to Brussels” than it is to explain why Britain would want to join Belarus as one of only two European countries not signed up to the Convention.
  • The fact that citizens can use the ECHR to enforce rights against the government/public bodies. It is not clear whether the objection is to (1) the existence of such rights; (2) how they have been interpreted by non-British judges; or (3) how they have been expanded beyond the original intention. Let’s unpick these.

In summary, the rights are:-

  • life, liberty, including of movement and security,
  • a fair trial, 
  • a private and family life, equality between spouses, a right to education and to marry
  • freedom of thought, conscience, religion and expression, assembly and association, 
  • the peaceful enjoyment of property
  • free elections with a secret ballot.

Then there are the prohibitions:-

  • No imprisonment without trial – to which are attached various procedural rights (the right to appeal, compensation for a miscarriage of justice, not to be tried twice for the same offence etc)
  • No punishment without law
  • No expulsion of nationals or collective expulsions of non-nationals
  • No discrimination
  • No capital punishment, no torture, slavery or forced labour

It’s worth noting that the EHRC represents a very British view of rights and the relationship between rulers and ruled. The rights are, in essence, for people to be left alone by the state so that they can get on with their lives. If the state does have to interfere, it needs to do so in a proportionate way, according to clear rules with safeguards so that it does not abuse its considerably greater power. It needs to behave fairly, not just in what it does but in how it does it. Even though expressed as individual rights, they are really about limiting what the state can do, about preventing abuse, misuse and arbitrariness and giving individuals a remedy if these occur.

This view of human rights is utterly understandable given the circumstances in which the ECHR came about: the aftermath of WW2 and the realities of Communist rule in Eastern Europe. But it also drew strength from a much older British tradition, one going back to Magna Carta, rooted in the common law (a view of the law as a way of permitting people to obtain remedies to disputes or injustice, even when those wrongs are done by the sovereign, with general principles deduced from particular cases). Law does not always or even primarily come from what the sovereign dictates but from all these many decisions on individual cases. As Maxwell-Fyfe, the lawyer, prosecutor at the Nuremberg trials and future Tory Home Secretary, who played a very significant role in its drafting, wrote: “I wanted to get some international sanction in Europe behind the basic decencies of life.” 

“Basic decencies”: what a very understated, almost mundane, but so very British way of describing something so important.

And the ECHR is important: its rulings have changed, inter alia, UK laws on the privacy of our communications, the ability of the police, journalists and employers to monitor them, how long the police can hold the DNA of innocent people, the protection of journalists’ sources, including whistleblowers, gay people serving in the armed forces, the freedom to report on legal cases in the public interest (the Sunday Times/thalidomide case), forced labour and domestic slavery. Not all its judgments have been welcome – for instance, giving prisoners the right to vote or, rather (since the reporting of ECHR cases in the British press is generally as abysmal as it is of domestic cases), saying that the government should consider whether a blanket ban on all prisoners having the vote was justified. 

The expressed objections are that the original rights were fine. But they have been interpreted in such a way as to expand them well beyond their original intentions, partly as a result of rulings by foreign judges not steeped in English jurisprudence. Setting aside the implied condescension in such a view (is diversity of legal perspective so unwelcome?) you’d have thought that bringing the ECHR home via the Human Rights Act so that it is British judges ruling would be welcome by those unenamoured of foreign judges. Not a bit of it.

Another is that the whole development of human rights law over 70 years has resulted in human rights moving from being defined as restraints on governments to demands on them and, therefore, on other groups of citizens. Balancing citizens’ competing demands and interests is properly the role of politics not courts. There is some substance in these criticisms, which have often been eloquently made by British lawyers. The extent to which this is a result of the ECHR, its jurisprudence or how it was implemented in the UK via the Human Rights Act is beyond the scope of one header to analyse.

But the ECHR has been important for one other reason:  the very fact of its existence, setting out the basic limits to state action, is a standing rebuke to the idea that within a nation’s boundaries a state can do whatever it pleases, no matter how offensive to justice and all norms of civilised conduct. Perhaps this is the core of the objections. If you think that a sovereign nation should be free to do whatever it wants, why accept any constitutional or other restraint on Parliamentary sovereignty? The only judges should be the British electorate. Not the courts. And certainly not foreign judges or foreign entities seeking to bind Britain to such standards. It is a very 19th century view of what sovereignty means. And it is often accompanied by the (colourable) claim that Britons had human rights long before the ECHR and will continue to have them regardless.

If governments are unrestrained by the ECHR, if limits are placed on domestic judges, if the citizen’s ability to challenge government decisions is restricted (the latter two clearly indicated in the government’s manifesto) how certain can we be that such rights would continue or be effectively protected? Is it sensible to allow a government such absolute power? Or to trust that it will use it wisely? Easy to rage against turbulent judges but substitute this for law and we risk losing our own protections. This government may have noble intentions. We cannot safely assume this will always be the case.


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