European Convention on Human Rights: How British is it?

European Court of Human Rights Strasbourg
Ouverture de l’année judiciaire 2018 – photo from The Council of Europe website, used with permission

Given the UK government’s deeply concerning and increasingly antidemocratic and authoritarian tendencies, concerned citizens need to better understand the European Convention on Human Rights (ECHR) – and know that it was driven by Britons in the aftermath of WWII.

Some people talk about the ECHR as if it was forced on the unwilling British by Europe but the reality may surprise you.

Some talk about the ECHR as if it is a bad thing, imposed on the unwilling British by our European neighbours. This is profoundly misleading and insulting to previous generations fighting in and affected by WWII which was started by the leader of an antidemocratic authoritarian government.

In the early 1940s, British PM Winston Churchill raised the idea of a ‘Council of Europe’. In the wake of WWII and the horrors of the Holocaust, the idea behind the Council of Europe was to set up an international organisation to promote democracy, the rule of law and human rights.

Churchill’s vision was for a post-war Europe united by common rights & freedoms, with a shared commitment to these principles:

“It is for the life and liberty of the individual, for the fundamental rights of man, now menaced and precarious in so many lands, that peoples tremble.”

Despite losing the 1945 General Election, Churchill remained an influential figure, becoming Chair of the newly-formed United Europe Movement.

“In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law.”

Churchill, 1948

The Council was established by ten states, including the UK, on 5 May 1949. These men of dialogue, who had lived through two world wars, were the pioneers of a Europe of peace founded on the values of human rights, democracy, and the rule of law.

“The dangers threatening us are great, but great too is our strength, and there is no reason why we should not succeed in… establishing the structure of this united Europe whose moral concepts will be able to win the respect and recognition of mankind…” Churchill, 12 August 1949.

Human Rights Convention

The Council of Europe started creating a human rights convention. Again, Winston Churchill was an advocate:

“In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom & sustained by law.”

It was named the European Convention on Human Rights.

One of the key writers of the European Convention on Human Rights was British Conservative MP and lawyer David Maxwell-Fyfe, who during his political career served as Attorney General, Home Secretary, and Lord High Chancellor of Great Britain.

Maxwell-Fyfe was one of the prosecuting counsels at the Nuremberg Trials, and subsequently his contribution to the European Convention on Human Rights was so great that he has been described as “the doctor who brought the child to birth.” Maxwell-Fyfe was also involved in drafting the UN’s Universal Declaration of Human Rights.

Another important British player was Liberal Party politician, editor and newspaper proprietor Lord Layton – Vice-President of the Parliamentary Assembly of the Council of Europe.

Others with important roles in getting the Convention into shape included Labour’s Ernest Bevin (UK Secretary of State for Foreign Affairs), Conservative Harold MacMillan (who went on to serve as Prime Minister), and Conservative Samuel Hoare (Home Office Under- Secretary).

Maxwell-Fyfe and other international lawyers started preparatory work on the Convention and a special section of the Council of Europe was created to produce a first draft. In early 1950, the experts struggled to agree on the text and so they produced two versions of the Convention.

During drafting there were fierce debates about the content of the Convention. One debate centred on whether the rights should just be listed or fully defined. The UK argued strongly in favour of definition. Samuel Hoare worked to ensure that the rights were precisely defined.

On legal enforcement, Maxwell-Fyfe said:

“We cannot let the matter rest at a declaration of moral principles and pious aspirations, excellent though the latter may be. There must be a binding convention, and we have given you a practical and workable method of bringing this about.”

European Court of Human Rightss

Given the Rwanda Plan, it is notable that it was finally agreed that states could decide whether or not to give individuals the right to complain to the European Court of Human Rights and whether or not to accept the Court’s jurisdiction, which states could choose to accept or not.

The UK was the first signatory on 4 November 1950

The text of the Convention and the finished draft was considered in September 1950. The European Convention on Human Rights was signed in Rome on 4 November 1950.

The UK was the first signatory to the Convention, and the Convention entered into force on 3 September 1953.

Eventually, in 1966, the UK accepted the optional clauses. In 1998, Protocol 11 to the Convention made the right of individual petition compulsory. Conservatives questioning the ECHR must know that an ideal of Europe united by democracy and human rights was championed by Churchill.

In November 1958, the argument over the optional clauses giving the European Court on Human Rights jurisdiction and individuals the right to petition the ECHR was re-introduced to the UK Parliament.

“The right of individual petition is perhaps the most fundamental”

Lord Layton

The Charter of Human Rights that Churchill envisioned became known as the European Convention on Human Rights. It protects the right to life, to liberty and security of person, to free speech, to a fair trial, to free and fair elections and to freedom from torture, slavery and discrimination.

Dictators seek to avoid inconvenient legal constraints

Over the course of history, dictators, autocrats, and authoritarian Governments have regularly tried to avoid the rule of law. Authoritarian and autocratic leaders always seek to avoid inconvenient legal constraints and judgements.

Even considering ignoring ECHR rulings shames Britain.

The Nuremberg Trials were held to bring justice for the millions who lost their lives to the Nazis. How do we ensure that something like this never happens again? The European Convention of Human Rights.

Lessons from Nuremberg must NEVER be forgotten.

Well here we are. A once proud and half decent nation turned into one of the most polarised, antidemocratic & authoritarian populist nationalist ‘advanced economies’ on earth, in just a few short years.

The PoliceBill includes some of the most draconian, most authoritarian and most antidemocratic legislation of the last two centuries.

Changes to the Official Secrets Act mean journalists could face up to 14 years in jail for stories embarrassing the Government.

If you can’t see it, you’re blind.

If you don’t oppose it, you’re complicit.

Editor’s note:

This article is edited by Magdalena Williams, based on a Twitter thread by Dr Russell Jackson.

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