This article is reproduced by kind permission of The Federal Trust
70 years ago, on 4 November 1950, the European Convention on Human Rights was signed in Rome.
The ECHR was a remarkable achievement. Like its better known cousin, the EU, it has become a foundation stone of post-war peace and stability in Europe. We should heap praise on the ECHR, not least for the way it protects those most at risk in our society. Beyond the celebrations, however, we also need to mobilise to defend it.
The Human Rights Act, which came into effect twenty years ago this year, means that British citizens can access their rights under the convention in UK courts. Looking back at the legacy of the Human Rights Act, Kate Allen, Director of Amnesty International said:
“From Hillsborough to the Mid-Staffs hospital scandal, the Human Rights Act has been absolutely key to the big justice fights of the last 20 years. It’s the unsung hero of UK life, holding powerful people and institutions to account when ordinary people are let down.”
To repeal the Human Rights Act would put the provisions of the ECHR beyond the reach of many and therefore deny them justice. To withdraw from the Convention itself would remove the UK from the European family of nations. The UK may have left the EU but it is still part of the Council of Europe. Unfortunately, the public often confuse the two.
It is troubling that there is no clear commitment by the UK Government to upholding the UK’s membership of the ECHR in the future. Eurosceptics saw the EU as a constraint on the British government’s freedom of action. Many will see the ECHR in the same way and want to leave for the same reason. They have the chutzpah to believe they can do so.
The UK government is led by a Prime Minister who abhors any restriction on his freedom of action. It is not a case of “one rule for me and another for everybody else”. Boris Johnson appears to believe there should be no rule for him at all.
The sketch “What has the European Convention on Human Rights ever done for us” is perhaps still the best introduction to why it matters. A Prime Minister explains to civil servants that Britain will not be dictated to by Europeans. It ends with a climb down when he is reminded the British were the authors of the ECHR themselves.
The sketch works because although the Prime Minister portrayed by actor Patrick Stewart can’t stand the words ‘European’ or ‘Convention’, he does like the words ‘Human’ and ‘Rights’. Is it possible to have the same confidence in Boris Johnson and his government?
In the absence of rules, the exercise of power becomes arbitrary. This rarely works out well, particularly for those who are most in need of the state’s protection. The ECHR acts as a bulwark against what the political philosopher Hannah Arendt called the “banality of evil” – the idea that one can do evil, without being evil, because nothing can be done to stop it.
Government must have regard for the Human Rights Act in passing legislation and in all its decision-making. The Convention mirrors the standards of civilised behaviour and successful cases lead to compensation if those standards are not met.
Potentially overturning rules it does not like with new legislation (for example to remove the possibility of judicial review of prorogation) would not be an option the Government could contemplate.
No doubt the Government has a cunning plan to at least circumvent some of the provisions in the ECHR if not leave the Convention altogether – not yet, at least. What would such a plan look like, and what can be done to stand in its way?
The first step would no doubt be to repeal the Human Rights Act, possibly replacing it with a Bill of Rights. Next, the Government might seek exemptions from the provisions, or simply ignore them, as it does with respect to the voting rights of prisoners.
There have been challenges to the ECHR from previous administrations, famously when Theresa May was Home Secretary. Usually these were driven by individual cases in which the government wanted to get something done but was prevented from doing so by the Convention – such as deporting the extremist Islamic cleric Abu Hamza.
Today the threat to the ECHR is much more insidious. It is not just driven by frustration at not being able to act in a particular set of circumstances but by a disdain for the rule of law in general, especially for laws which cannot be over-turned by parliament.
The EU has said that it would not countenance a trade deal with the UK without an assurance of the UK’s continued affiliation to the ECHR. But what if the UK were to leave the EU without a deal? What if there was a return of a hard border between Ireland and Northern Ireland? This would be incompatible with the Good Friday Agreement, which itself is underpinned by the ECHR.
Or take the case of EU citizens in the UK whose lives have been thrown into such turmoil as a result of Brexit. Professor Dimitrios Giannoulopoulos has argued that removing the rights of EU citizens in the UK is a human rights issue. What will happen at the end of the period of grace for EU settled status applications on 30 June 2021 and the government starts to deport vulnerable EU citizens as it has threatened to do?
The government might also be asking itself what the implications of the European Convention on Human Rights are for its handling of the Grenfell enquiry or the Windrush scandal? The Human Rights Act puts obligations not just on Central Government but on local authorities, health authorities, the police and indeed all public bodies as well.
Is there nothing at which the Government will not stop? Is there nothing we as citizens can do to prevent this? These are exactly the questions to which the European Convention on Human Rights provides an answer and the best argument that exists for keeping it in the future. It also explains why this government may wish to bury it.
In the run up to and in the aftermath of Brexit, Britain was driven into two rival camps, each seemingly impervious to the arguments of the other side. Public understanding of the underlying issues was sacrificed to a style of campaigning which favoured the mobilisation of rival camps rather than the promotion of debate and consensus-building.
The ECHR was born of a search for common ground. The UK may believe that after Brexit it can replace what it sees as a set of trading rules with a new set of bi-lateral agreements. But it cannot invent a new code of civilised behaviour, which all countries who sign up pledge to live by.
It should be no surprise, that those who seek to undermine support for the ECHR have started not by criticising the Convention but rather by attacking the legal profession in general and human rights lawyers in particular. Just as with Brexit, they recognise that the pathway to leaving the ECHR lies through polarising and dividing public opinion.
As we celebrate 70 years of the ECHR, we should also remember that we have more in common than divides us.
Roger Casale spoke on “Human rights beyond Europe” at a symposium on the occasion of 70 Years of the ECHR on the 4 November 2020.