The European Convention of Human Rights (ECHR) was introduced as a corollary of the 2nd World War under the auspices of the Council of Europe in 1953. It was enacted with its main purposes being to ensure the protection of certain fundamental rights and freedoms and to uphold democracy in European countries. The UK was one of the first signatories to the ECHR in 1950, far predating its joining of the European Union (EU) in 1973.
A common misconception that has caused animosity towards the convention is that the ECHR was enacted by the European Union when in fact it was actually conceived before the EU was formed in 1957. It was drafted by the Council of Europe with the assistance of the former UK Prime Minister Winston Churchill. The EU and the ECHR are two legally separate institutions in their conception. Hence, leaving the EU would not amount to an automatic leaving of the remit of the ECHR as well.
THE HUMAN RIGHTS ACT AND THE ECHR
The Human Rights Act 1998 (HRA) is the UK’s principal piece of human rights legislation. The HRA embodies and encodes the ECHR into domestic law and enables citizens to challenge disputes which might violate their ECHR rights in UK courts.
It has been a long-standing plan of the Tory government to repeal and replace the HRA together with removing the UK as a member of the ECHR altogether in the name of Brexit, indirectly eroding citizens’ rights. In its place, they have pledged to replace the HRA with a homegrown ‘British Bill of Rights’ which would allegedly give the UK more control over its domestic laws. Some have argued that the British Bill of Rights would give the UK, as an autonomous country, a “more British” and “less European” interpretation of human rights law. The irony is, of course, that the ECHR was in fact partly written by the British government, advocated by Winston Churchill and co-written by Conservative MP David Maxwell-Fyfe.
THE IMPORTANCE OF REGIONAL AND INTERNATIONAL LEGAL PROTECTION
The overarching concern of the possibility that the UK might abandon the ECHR is that this would remove its international layer of protection for human rights. Boris Johnson had refused a condition demanded by the EU as part of the post-Brexit trade deal that the UK remain bound by the ECHR, confirming that the UK did not want membership to the ECHR to be written into the trade agreement. This heavily suggests that the UK is considering withdrawing from the ECHR at a later date. If the UK decides to abandon the ECHR, it would be the only country, other than Belarus, in Europe, to not be a signatory to the Convention.
Withdrawing from the additional surface of supranational protection diminishes the ability to hold the government accountable if and when leaders disregard or violate the rights and freedoms of citizens. While the Conservative party believes that the UK does not require the additional layer of commitment after Brexit, UK citizens should nonetheless be free to decide how human rights are to be upheld. The ECHR is paramount in enshrining rights to free speech, family life, and protection from discrimination.
PRISONER VOTING RIGHTS
One of the most vexed debates over the function of the ECHR and its relationship with the UK revolves around the issue of prisoner voting. In the UK, there is a blanket ban on voting for prisoners serving a custodial sentence, except for prisoners on remand. However, this contradicts Article 3 of the First Protocol of the ECHR which dictates that all citizens of Europe have the right to vote. In the cases of Hirst v UK and Greens and MT v UK, the European Court of Human Rights (ECtHR) held that the UK’s continued ban violated prisoners’ right to vote. The ECtHR did not demand that the UK provide voting rights to all prisoners; it only stated that an automatic and blanket ban on prisoners’ right to vote is not acceptable. It actually gives Member States a wide discretion to determine their voting laws. The Conservative government’s resolve to limit the interference of the ECHR stems from such domestic issues and their desire to ignore Strasbourg’s rulings.
OTHER CONTROVERSIAL ISSUES
Another controversial episode was in relation to the argument that the act indirectly protects terrorists and hate preachers. This refers to the case of Abu Hamza, who, at a time, was preaching radical Islam and violence in the UK and could not be deported on the grounds that doing so would violate his right to freedom from torture.
Outcomes premised on the ECHR which have been favourable to UK Citizens have been less prominent in discourse. The Convention allowed the Hillsborough families to pursue a second inquiry based on the victims’ right to life. Additionally, individuals have enforced their right to wear religious symbols at work by pursuing their freedom to manifest their religion.
It seems probable that the UK is planning to leave the ECHR as well as to replace the HRA in the future. It is still also likely that withdrawing from the ECHR would be detrimental to the protection of citizens’ rights against the state.
Andrea is an aspiring barrister, currently undertaking the Bar course. Passionate about Human Rights, Andrea acknowledges the distressing deprivation of rights in this world and endeavors to spread awareness through writing.