loading . . . What has the European Convention on Human Rights ever done for us? European Court of Human Rights
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Every week seems to bring a new politician saying that they think the UK should leave the European Convention on Human Rights (ECHR). But few of them explain what it is, how it works, or how it benefits each and every one of us in the UK.
### **Where did the European Convention on Human Rights come from?**
The ECHR rose from the ashes of Europe after the horror of WWII. It was part of the postwar settlement which said ‘never again’ – never again should countries be able to abuse their own people with impunity.
In the words of the famous jurist René Cassin: _“we do not want a repetition of what happened in 1933, where Germany began to massacre its own nationals and everybody bowed, saying ‘Thou art sovereign and master in thine own house.’”_
In 1950, an international agreement was put in place that everyone in Europe should have a minimum of fundamental legal rights. That is the ECHR.
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These rights would be for everyone, no matter their race, class, creed or citizenship, and no matter the political inclinations of the government of the day.
A court was also set up in Strasbourg – the European Court of Human Rights – to enable people to enforce these rights where necessary.
### **Did the UK support the ECHR?**
You might be surprised to learn that the UK was at the forefront of this international effort. David Maxwell-Fyfe – a Conservative Home Secretary – essentially wrote the entire agreement.
No lesser figure than Winston Churchill regarded the ECHR as fundamental to Europe’s peaceful future.
Churchill declared in a speech in 1948: _“In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law.”_
**What kinds of things are protected under the ECHR?**
The ECHR was founded on reciprocity – each nation promised to all the others that they would protect an irreducible minimum of human rights.
Those rights protect and benefit everyone.
It is because of the ECHR and the Strasbourg Court that corporal punishment is not permitted in the UK any more, after a case where a youth court ordered the 15-year-old Anthony Tyrer to be ‘birched’.
The shocking thalidomide scandal could only be reported after the Sunday Times newspaper fought for its ECHR right to free speech.
Arbitrary police phone-tapping was widespread until an antiques dealer from Dorking called James Malone successfully argued that it breached his right to privacy.
Gay people were only allowed to serve in our military after soldiers successfully relied on their rights to privacy and non-discrimination.
Of course, cases in Strasbourg do not just involve the UK. Women have a right under the ECHR to be protected against domestic violence. Journalists cannot be required to disclose their sources.
These cases involve normal people like you and me. The ECHR is for all of us just as much as it is for each of them.
They also mean that European countries can cooperate on issues like extraditing criminals and fighting terrorism, knowing that they will all respect rights to a fair trial and to privacy.
### **What is the Human Rights Act?**
Recognising the importance of the ECHR, the New Labour government enacted the Human Rights Act in 1998. For the first time, this enabled you or me to rely on our ECHR rights in UK courts without having to go to Strasbourg. It was about ‘bringing rights home’.
The Human Rights Act is also entirely independent of the ECHR and the Strasbourg Court. It is simply a piece of UK primary legislation like any other.
In the UK, the Human Rights Act enabled families of Hillsborough victims get a proper investigation of what went wrong.
It also enabled gay people to keep their home after the death of their long-term partner.
### **Is the ECHR anti-democratic?**
The point of the ECHR is that the minimum baseline of rights should be protected from an over-mighty legislature or executive.
But of course government has to be able to govern. We need effective government, with real power, in order to solve the problems we face.
That is why the baseline was set very low. For example, the right to life, the right not to be tortured, the right not to be enslaved, the right to a fair trial, the right to vote, and the right to privacy and family life.
Would you want to live in a society where those minimum rights weren’t protected? Where they could be overridden at the whim of the Government of the day? Would such a society even be a real democracy?
It is absolutely wrong to say, as critics of the ECHR often do, that ‘human rights are overriding democracy’ or that the ECHR is in some way ‘anti-democratic’.
Above its low minimum baseline, the ECHR is silent. It leaves government huge room to manoeuvre. Democratic governments and parliaments, including the UK government, can enact whatever policies or laws they want.
Any notion that democracy is ‘overridden’ by the ECHR in some way is rubbish.
### **Doesn’t the Human Rights Act allow judges to override Parliament?**
No. Contrary to what some politicians seem to think, the Human Rights Act does not allow judges to override Parliament. That is simply wrong.
A judge can stop a minister or official from doing something that infringes an ECHR right, unless Parliament has made it clear in legislation that ECHR rights can be overridden.
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But judges have no power to quash an Act of Parliament. All they can do is declare that the Act is not compatible with human rights. The Act still remains fully in force. It is not ‘quashed’ in any way.
It is then up to Government and Parliament to decide whether they want to change the law or not, but that is entirely their choice. The courts have no role there.
In short, Parliament can always decide to breach ECHR rights. But unless it has clearly decided to do that, ministers and bureaucrats have to respect those rights. There is nothing undemocratic about that.
### **So why do some people always complain about the ECHR?**
Politicians who complain that the UK should leave the ECHR either don’t understand it or are trying to distract you from other issues.
Some of them want to move to a less democratic system where the government can take away basic rights from people who disagree with them, or who get in the way of their plans. That could be any of us.
Every single country in Europe is a member of the ECHR, with only two exceptions – Russia and Belarus.
Do we really want the UK to be like Russia and Belarus, the last two dictatorships in Europe, who brutally invaded Ukraine?
Or should we stand with the other 45 European countries, our international neighbours and partners, and keep the fundamental rights and protections that we fought for in WWII?
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Tags: European Court of Human Rights / UK Labour Party / UK politics / European convention on human rights / PM / Labour Government / Keir Starmer / Winston Churchill / House of Commons / Parliament / ECHR / prime Minister / Downing Street / Politics / Government / Labour / MPs / Labour Party /
### Oliver Jackson
Oliver Jackson is a barrister and a member of the Society of Labour Lawyers.
View all articles by Oliver Jackson
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