Should we pull out of the European Convention of Human Rights (ECHR)?


Before I became an MEP, I wrote a series of papers for a website called ‘ShouldWe’, which publishes articles on controversial issues. Unlike other websites, it called upon the same author to present the case ‘for’ and ‘against’. As we enter into the hurly burly of the debate on the future of the Human Rights Act and the European Convention, I thought it might be useful to rehearse the arguments.

You can access the original article here:

In the original article, each statement is a hypertext link to the evidence, which you can then interrogate further. (Facebook strips out these links).

Policy detail and context
The European Convention on Human Rights (ECHR) is an international treaty to protect human rights and freedoms in Europe, which came into effect in 1953. The convention was drafted by the Council of Europe, a supranational body which comprises 47 European countries (not to be confused with the European Union’s institution of similar name, the European Council).

All Council of Europe member states are party to the Convention and new members must ratify the convention at the earliest opportunity. The operative section of the Convention consists of 18 articles which detail the principal rights and freedom afforded to all, including the right to freedom and security, free elections, fair trials, freedom of expression and the right to privacy and family life. The convention also prohibits the death penalty, torture, slavery and discrimination.

The rights detailed in the convention are guaranteed by the European Court of Human Rights (ECtHR). The judgements of the court are binding on the states concerned, requiring them to erase the consequences of the violations for the applicants and amend their legislation and practice. There has recently been much adverse British press coverage of the rulings of the European Court, leading a number of politicians to call for fundamental reform or even for the UK’s withdrawal.

FOR. UK law must be made by elected legislators not judges, European or British:

Parliament is the supreme legal authority in the UK and the only institution empowered to create or end any law. Generally, the courts cannot overrule its legislation (and no Parliament can pass laws that bind a future Parliament). This UK Government acknowledged this fact during passage of the Human Rights Act (1998), the Act which gave force to the ECHR, stating that: ‘to make provision in the Bill for the courts to set aside Acts of Parliament would confer on the judiciary a general power over the decisions of Parliament which under our present constitutional arrangements they do not possess, and would be likely on occasions to draw the judiciary into serious conflict with Parliament.’ Lord Sumption, justice of the UK Supreme Court has criticised the ECtHR on this point (November 2013), noting that in adopting a ‘living instrument’ approach, the court is recognising rights that states do not appear to have granted or may have positively excluded, and is indulging in ‘judicial law making’. This view has been echoed by other leading legal figures, including the former Lord Chief Justice, Lord Judge, who warned that ‘legislation can be made by judges on all sorts of societal issues - binding legislation,’ creating a ‘very serious problem with [parliamentary] sovereignty’.

FOR. The UK has a long record of supporting freedom; it needs no European convention to enhance this record:

The UK has a long established tradition of defending freedoms and supporting the rule of law, from the Magna Carta (1215) which constrained the rule of kings, through the Habeas Corpus Act (1679) which restricted unlawful detention, to the Bill of Rights in England (1688) (Claim of Right in Scotland) (1689), which set out the role of parliament and the rights to freedom of speech. In 1948, Winston Churchill convened a congress in The Hague at which he argued for a Charter of Human Rights, ‘guarded by freedom and sustained by law’. The UK was instrumental in the establishment of the Council of Europe (1949), and the drafting of the original ECHR. The established corpus of laws relating to human rights has meant that the UK has a very low rate of defeat in the ECtHR, averaging around 1.4% (1999 -2010). Despite this, recent high profile decisions of the ECtHR against the UK have done much to undermine public confidence in the Convention, notably the court’s stance against the extradition of the radical cleric Abu Qatada, whole life sentences and the declaration that UK prisoners must be able to exercise their right to vote. Public confidence has been further undermined by the impotence of parliamentarians to address these concerns. Given the nature of human rights abuses across Europe, it seems a disproportionate effort is made to address the relatively minor infringements of the UK, compared to the more substantial breaches elsewhere.

AGAINST: Much of the clamour for withdrawal from the ECHR has been whipped up by the UK media, pedalling myths and distorting the true record of the UK’s relationship with the Convention:

The ECtHR has long been criticised by parts of the British press. Such was the distortion that the ECtHR issued a response correcting the inaccurate portrayal of the court (October 2013). In this rebuttal the ECtHR addressed exaggerations regarding compensation. Press coverage has centred round the assertion that the justices are ‘unelected’ (they are elected by Council of Europe’s Parliamentary Assembly), that the ECtHR can over-rule the UK Parliament/Supreme Court (it cannot, but the Supreme Court must ‘give effect to the rights contained in the ECHR’), that the Court regularly seeks to confront or overturn British laws (the UK has one of the best records for having its legal positions endorsed by the Court) and that the ECHR is ‘a prisoners charter’ (generally true, since the UK, as a mature democracy, infringes the human rights of its citizens relatively rarely). Of the nearly 12,000 applications brought against the UK between 1999 and 2010, 3% were declared admissible, with only 1.8% finding a violation. If adjustment is made for cases where the violation has a common root resulting in a single judgement, the defeat rate is 1.4%. Only 4 countries win more cases than the UK – the Netherlands, Sweden, Denmark and Andorra.

AGAINST Although the UK has a relatively commendable record on human rights, judgements of the ECtHR have done much to advance human rights in less prominent or popular areas:

A number of judgements of the ECtHR have brought significant change to British law. Notable judgements relate to: the retention of the DNA of innocent people; indiscriminate stop and search powers of the police; the banning of corporal punishment in schools; protection of gay, lesbian and transgender rights (although the court declined to declare ‘gay marriage’ a human right); the outlawing of forced labour and servitude; press freedoms (including the protection of journalists’ sources, and protection of investigative journalism – notably in the exposure of the thalidomide scandal); and prisoners’ rights- notably the ending of ‘slopping out’. In each case the UK Government has responded positively to the judgements. The one notable recent exception concerns prisoner voting rights, which has remained unresolved since 2005. Importantly, the ECtHR’s role is limited by the doctrine of the ‘margin of appreciation’, which recognises that national authorities are best placed to decide how human rights should be applied. That being said, British courts are not legally bound by the decisions of the ECtHR, although they must take them into account when considering human rights cases. However, the UK government as a signatory to the Convention, is legally bound to implement the decisions.

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