Opinion: The ECHR is a “British Bill of Rights”

Following the cabinet reshuffle earlier this month, the push from within the Conservatives to repeal the Human Rights Act and remove the UK from the European Convention on Human Rights with a British Bill of Rights in its place now seems firmly in the forefront of our political debate.

The most notable change was clearly William Hague’s surprise departure from Foreign Secretary and announcement that he would stand down as an MP next year but the most significant change was the sacking of Dominic Grieve from Attorney General. Serving as the Chief Legal advisor in the government, he had provided sound advice over the last four years on Britain’s place within the ECHR and more recently our relationship with the EU.

Despite the major risks associated with departure from the ECHR including undermining human rights in Europe and a risk to our EU membership, it does beg the question, where do the Tories want to go with this? It’s no secret that they are big fans of Parliamentary Supremacy, in particular with regards to British Sovereignty in that they “want to make the Supreme Court supreme,” but that doesn’t necessitate a British Bill of Rights, unless they believe the ECHR is fundamentally at odds with Britain.

The generally held belief among the Tories appears to be that the ECHR is dictating to us what we should be able to decide ourselves in our domestic parliaments on issues such as deportation and prisoner voting rights. Fundamentally what they fail to understand is the principles in which the convention was written, but also who wrote it. David Maxwell-Fyfe, the Conservative MP and most notable lawyer who drafted the convention, did so on the back of his work in the Nuremberg Trails and in the widely held belief that nothing on the scale of WWII human rights abuses could ever be allowed to happen again.

With this in mind, the newly formed Council of Europe aimed to set a common standard across the European continent for the respect of human rights, and so the ECHR was born and survives to this day. As a directive and as a law embodied in the Human Rights Act, we’ve protected human rights in the UK and Europe as part of this common standard.

Human rights are not something that can be repealed or taken away but something we must protect within every inch of our ability. They extend to everyone. The ECHR sets the bar in countries that are signatories but as an important principle of its creation, it sets the bar to all people where it can, which is a principle I will not readily give up. Human rights by their nature are something equal to everyone, what we recognise as a human right should not be subject to nationality or where someone lives, so when David Maxwell Fyfe drafted what he believed to be fundamental human rights, why wouldn’t we wish to extend that as far as we could?

* Jonathan Waddell is a History and Economics student at the University of Aberdeen and President of the Aberdeen University Liberal Democrats.

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16 Comments

  • Anthony Fairclough 30th Jul '14 - 9:26am

    I think we are in danger of missing some of the subtleties of this issue – the Human Rights Act 1998 is perfectly compatible with Parliamentary sovereignty. The Tories are merely looking for a dog whistle.
    A British Bill of Rights could actually ensure proper legal protection for human rights – the HRA and Convention are actually quite limited, and would remove the ‘sting’ that in some ways human rights laws are ‘foreign’.
    I won’t get on to the fact that I believe the focus on “human rights” is totally wrong, that we should instead focus on the duty (of states, public authorities, individuals) to act in a certain way 🙂

  • Jonathan Waddell 30th Jul '14 - 1:08pm

    Well if we had a written constitution i feel we could protect individuals in a much better way than we do now, with things like the HRA, Freedom of Information, Data Protection, etc all embodied within it.

    It would bring all kinds of law that currently goes a long way to establish individuals relationship with the law and authority into a clearly protected system. As it stands, the ECHR and the HRA protect individuals in a ‘vertical’ system and do so in a way that sets a common standard across Europe. I for one, am proud of that.

  • Anthony Fairclough 30th Jul '14 - 2:09pm

    A British Bill of Rights is one way to achieve what you want. But actually, it’s not the existence of a written constitution you want (and our constitution is written, just not in one place); but a judicial system able to strike down legislation as unconstitutional, and therefore the end of Parliamentary sovereignty.

    Not sure what you mean about a “vertical” system, and I don’t agree that the HRA sets a common standard across Europe – the Convention perhaps does, but there are plenty of CoE states that regularly get found to be in breach of the Convention.

    What you appear to be arguing for could easily be characterised as “Judge-made law by foreign judges” – and perhaps you can see why the Tories’ position has popular appeal.

  • Jonathan Waddell 30th Jul '14 - 2:27pm

    The HRA is just the convention but embodied in domestic law. Vertical meaning you can take institutions, etc to court but not other individuals which would be horizontal.

    Sorry, when i said written constitution, i meant what we all tend to assume by that, that i single written, codified and entrenched document not suggesting that our constitution is not in fact written down. By that i mean that the system would have courts that rule law unlawful, which is one of the main arguments and most attractive for a written constitution.

  • Anthony Fairclough 30th Jul '14 - 3:30pm

    @Jonathan Waddell “The HRA is just the convention but embodied in domestic law.”

    No it isn’t. The HRA is the semi-incorporation of the majority of the Convention into domestic law, plus the detailed rules of how the judiciary are to deal with: Strasbourg decisions, incompatible secondary legislation, incompatible primary legislation (in a way that respects Parliamentary sovereignty) and a statutory “Judicial Review” action for determining relevant Convention breaches by public authorities.

    Yes, I assumed you were arguing for a system able to strike down legislation as unconstitutional, and the end of Parliamentary sovereignty. I think what you see as the main argument in favour is also the main argument against a codified and entrenched constitution – from a democratic point of view, why should we accept judge-made law over some of our fundamental rights? I am not necessarily opposed to this, but there’s an argument to be had.

    On the vertical/horizontal effect of the Convention, there’s some interesting authority allowing people to get de facto horizontal effect, as courts themselves must act in accordance with Convention rights.

  • Jonathan Waddell 30th Jul '14 - 4:04pm

    The constitution exists for a reason, if part of that is to protect peoples rights, then i would want the highest qualified lawyers to be able to rule legislation as unconstitutional.

  • Anthony Fairclough 30th Jul '14 - 4:26pm

    Ignoring the fact that Supreme Court Justices might or might not be the ‘highest qualified lawyers’: you might do; but lots of people wouldn’t. There’s an argument to be made as to why we should trust lawyers more than ‘democracy’.

    We have a constitution now, and I’d suggest it doesn’t do a bad job of protecting people’s legal rights; without the powers that you want to give to judges.

    I’m not arguing against you, necessarily, but part of the appeal of the Tories’ positions that people don’t want “foreign” and “unelected” judges determining their laws. Equally, I suspect that they still wouldn’t want unelected judges making their laws, even if they were British. You seem okay with the idea that allowing judges to strike down laws is a good thing; but you can’t take that as read.

  • Malcolm Todd 30th Jul '14 - 5:09pm

    I think I’m with Anthony Fairclough on this one. Well, I’m quite in favour of a codified constitution; but that’s not the main issue here. Giving judges the right to strike down laws passed by an elected parliament seems a fundamentally bad idea to me. By all means, make some laws harder to change — where there is a wide consensus at the time (as I imagine there was for the ECHR) that a legal right is desirable and of fundamental importance, make it so that a wide consensus is needed to change that. But don’t make it impossible to change; and don’t make it dependent on judges deciding when the consensus has changed rather than politicians. That just results in politicisation of judges (see the US Supreme Court). We like the ECHR because we like the rights that it confers (well, mostly). Do we have the right to bind the people of the 22nd century to our view of universal rights? Would we like to be bound by a document written by lawyers of the 19th century?

  • Little Jackie Paper 30th Jul '14 - 6:19pm

    Malcolm Todd – It’s not so much the politicisation of judges that’s the issue here, rather the definition inflation. It is true to say I’m sure that we all would like fundamental rights. But then I think that what has started to rankle with the ECHR/HRA is the sense that some of the cases that we see (at least in the media) are little to do with human rights in the sense of something to prevent WW2 scale abuses as the article talks about.

    Cases on things like immigration and deportation, wearing crosses/veils and the like seem to be matters of national law, not something that should be discussed as fundamental human rights beyond elected lawmakers. Or at least that’s my opinion – I realise others might well disagree.

    To an extent I think that sovereignty is a red-herring here. The definition-inflation of humans rights and the accompanying expansionism of the court seems to me to be more the issue. In fairness to the court, I gather it kicks out a huge number of cases that are initially referred.

  • An interesting debate.
    It is perhaps disappointing that we don’t in Britain have a fundamental document such as the American constitution and its amendments. Although there is the Bill of Rights – more concerned about Parliamentary sovereignty and curtailing the power of the Monarch than individual human rights.
    There are a number of points.
    Any Act that gives rights then “binds” subsequent Parliaments and acts. For example on equality regardless of sexual orientation.
    Judges have to negotiate their way through laws and may be give “old” laws new interpretations, balance differing laws etc. otherwise we wouldn’t need supreme court judges etc. who may interpret laws differently from lower courts.
    The HRA was to allow people to access their rights under the ECHR without spending (in 1997) up to £30,000 and a lengthy process. Unless we succeed completely from the ECHR and the Council of Europe then we will still have those rights.
    If you look through them I and I think most British people would want to keep all of them. They are basic – dare I say it “motherhood and apple pie”.
    Britain actually goes further in most regards – for example same-sex marriage etc.
    I appreciate the point about the interpretation by judges. At some point someone somewhere has to come up with an interpretation and application to everyday matters if you are to allow people fundamental rights. Mostly the judgements are misinterpreted – for example the judgement on votes for prisoners was saying that a blanket ban was incompatible you can still have rules about it. Guarding these types of rights prevents a descent into fascism and dictatorship.
    It is said that a measure of how civilised a society is, is how it treats its minorities against the tyranny of the mob and dictatorship of the majority – and we are all minorities in some aspect. Rights for prisoners, immigrants, minorities are going to be controversial and disliked from time to time but we must maintain them and particularly as Liberal Democrats when we say people will not be enslaved by conformity.
    I appreciate that as whole British people dislike judgements from a “foreign” court. There are whole rafts of international treaties and laws. I understand that from Wikipedia that we are essentially dualist on international law – it only becomes part of UK law by specific Act of Parliament as supposed to monoist (international law exists as part of national law as a whole). But the treaties and conventions we sign up to shape our law. From memory judges interpreted the UN Convention on the Right of the Child to say that children who are British citizens have a right to reside here and have their parents here – outside the financial requirement regulations etc. as being in their best interests.
    Being part of the ECHR (and other international bodies) does send a strong signal to other countries that we expect them to sign up and respect human rights – if we can’t, why should they?

  • Richard Wingfield 30th Jul '14 - 7:50pm

    The real question, as many here have pointed out, is who should have the final say on questions of human rights: judges or Parliament? There are certainly arguments for both, but I instinctively lean towards the judiciary as having the final say. One of the key purposes of human rights law is to protect minorities (and often unpopular minorities) from the majority, whereas MPs – since they wish to be re-elected – are much more likely to side with what the majority believes than the minority. MPs will be reluctant to take decisions protecting the rights of minorities due to the electoral consequences whereas judges have no such worries. That they are not going to be up for re-election gives judges a degree of independence and impartiality than MPs don’t have.

    I don’t buy into the idea that this politicises the judges. The reason the judiciary is politicised in the US is because they are nominated by the President and confirmed by half of the legislature (the Senate). Here we have an independent appointments commission. In any event, our judges have made decisions on controversial areas of public policy for years and are still very highly regarded.

    @Little Jackie Paper – I see the fact that the ECtHR is not having to deal with concentration camps, torture in prison camps, the destruction of synagogues, etc, as evidence that Europe (largely) is more civilised and places a higher value on human rights than before. If the ECtHR only dealt with WWII-scale abuses, they’d be sitting around twiddling their thumbs. As Europe has evolved, and as our human rights protection improves, so we demand ever greater standards. As you noted, in any case, the court already dismisses something like 90% of all applications as manifestly ill-founded and so generally is pretty good at weeding out the issues beyond its remit.

  • Simon Blanchard 31st Jul '14 - 8:56am

    The article here seems to suggest that by doing away with the ECHR that our rights in the UK will suddenly disappear. Not so, we already have a BILL OF RIGHTS 1688, which has stood the test of time in upholding individual rights. It is based on the presumption of liberty and freedom and Common law. The individuals freedom is only limited by laws telling him he can’t do something. We also have Habious Corpus, the right to see a judge in a court of law and also prima facie law that means anyone can’t be charged unless there is sufficient evidence to do so. People may say such laws that old can’t still be of any relevence today, but actually in law, the older it is and if still in use, the stronger it is. The monarchy and parliament are limited by this Bill of Rights(constitutional law)
    The priciple in law that if you are tried by your peers in a court of law , that neither the judge or the state can interfer in that process or steer the jury into any verdict. That is our very own Bill of Rights 1688. We in this country do NOT need the ECHR to give us rights we in this country have had for 300+ years.
    What are doing in THIS country is abandoning this tried and tested law for an inferior model in Europe.
    The only reason we can state we should be in it, is to encourage others to in it, that is all.

    http://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction

  • Simon Blanchard 31st Jul '14 - 10:14am

    If anyone is interested, there is a Youtube speech by John Bingley. He a layman, talks about what he has learned about the UK Constitional Law. Click on the link below.

  • Simon Banks 5th Aug '14 - 12:36pm

    As a long-distance walker, can you tell me more about these Nuremberg Trails?

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