Many times before on this Blog I have considered the Human Rights Act 1998 (HRA), the Convention upon which it is based, the United Kingdom’s relationship with that Convention and its institutions. In a week where we hear arguments proposing that the United Kingdom should withdraw from the European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR) I find myself once again giving thought to the situation and how we might have arrived here.
In the past I have largely been critical of the media and its selective or in some cases its misreporting of cases relating to Human Rights issues. Generally I have been of the opinion that this is somewhat a deliberate act by certain sections of the popular press, but have been given cause to reconsider this position. I had a discussion with a news agency recently regarding an article they had written in which they specifically blamed the European Union for a Human Rights matter. What I discovered was, what appeared to be, genuine ignorance of the fact that the ECHR is entirely separate from the European Union and not only that but ignorance of the Council of Europe. Whether this was a genuine ignorance or a pretend ignorance is something I would not wish to speculate on. Furthermore, I would not wish to speculate as to whether any genuine ignorance in this case is something that is widespread across the various media companies within the United Kingdom.
The ECHR was drafted following the atrocities that were seen within the Nazi regime that had spread across a significant section of Europe. It was drafted out of a desire to never again allow such atrocities to take place. It was an important treaty at the time and its importance is equally as great, if not more so, today. It guarantees the citizens of the 47 Nations who have signed the treaty fundamental rights and freedoms. The rights contained within are ones that most people would consider to be fundamental: the right to life, the right to be free from torture, the right to a fair trial, freedom of expression and such like. They are rights and freedoms which anyone in a western democracy would consider as being essential elements of a democracy in the sense that without them there would not be democracy.
A treaty is a powerful statement of intentions by a State. When signing up to such a treaty it sends out a message from the state to its citizens and other nations around the world. It clearly illustrates the basic values and principles which that State believe in. However, a treaty is nothing other than a statement. Without an institution by which member states can be held accountable it lacks a bite. This was the feeling at the time and resulted in the birth of the European Court of Human Rights (ECtHR). Without such an institution the treaty is almost meaningless, but through the ECtHR the citizens of all 47 member states have a right of recourse to hold their Government accountable to the promises they have made by being signatories to the treaty.
Simply having an institution in place where arguments can be made and judgments pronounced is not enough. That institution must have the ability to enforce the decisions it has made. The Court is an unelected body and that gives it an independence and freedom that national Governments and Parliaments simply do not. The United Kingdom has voluntarily agreed to submit to the jurisdiction of the ECtHR and as a result has to apply judgments made in relation to cases against it and take note of other judgments that may impact upon the UK Government’s policy. If the Government was simply able to ignore the judgments it did not agree with then the institution would be entirely useless and result in the situation of a country signing up to a meaningless document.
The United Kingdom is an international proponent for Human Rights and advocates less democratic states to adopt many of the ideals set out within the ECHR. The United Kingdom, along with others, has been very vocal about Human Rights abuses in countries such as North Korea, Iraq, China and Saudi Arabia. To pull out of such a prominent international treaty on Human Rights while advocating the adoption of the very ideals set out in that convention by other countries would seem odd, not to mention the diplomatic headache it would create. The United Kingdom would come under pressure from its European allies, all of whom are signatories to the ECHR. However, these reasons are not the ones that we should be focusing on when defending our membership of the institution that is the ECtHR and being a signatory to the ECHR.
When defending the ECHR it must be remembered exactly where its roots lie, not one of us in this country is ignorant of the horrors of the Nazi regime in the 1930s and 1940s. The Holocaust is taught to every single pupil to some degree in our schools prior to their leaving. The atrocities perpetrated by the Nazi regime lead by Adolf Hitler and uncovered in the post war period and trials at Nuremberg shocked to the core those who had not experienced it. The stories from those who lived in those areas and experienced the terror are truly shocking and hearing them should make anyone with any human decency want to do all they can to prevent such atrocities happening again. It is here where we find the routes of the ECHR.
In the United Kingdom we have suffered the largest assault on our civil liberties and fundamental democratic rights and freedoms since the Second World War. The rights and freedoms contained within the ECHR and enshrined into domestic law by the HRA are the very the UK went to war in 1939 to protect. It is important that we are not cavalier in the way we treat and view these rights and freedoms.
It would be possible to withdraw from the ECHR and have our own domestic legislation setting out what our rights and freedoms are. However, there is a significant problem in this. Currently, if the Government is defeated in the Supreme Court on a Human Rights issue it has no real choice other than to carefully consider the legislation in question and seek to pass an alternative. Without the International element to Human Rights the United Kingdom’s constitutional arrangement would mean that there is nothing at all to prevent the Government simply ignoring the fundamental freedoms and rights guaranteed. It is always open to the United Kingdom to withdraw from the ECHR and go down this route, but the accountability comes not only from the ECtHR, but the United Kingdom’s allies. The diplomatic situation that would be created by withdrawing from the ECHR is one that no Government would want to face, especially one such as the United Kingdom which is so very loud on matters of Human Rights in relation to other countries. It is these combined factors that keep not only the United Kingdom accountable, but the other nations who have signed up to this treaty. It is the combined force of the other member states and the ECtHR that helps to ensure that a situation similar to that seen develop pre 1945 from happening again.
Not one international treaty is without some form of institution monitoring compliance. Some of these institutions comprise unelected officials (e.g. The European Court of Justice, The European Court of Human Rights and The International Criminal Court) while others comprise elected officials from the member states (e.g. The United Nations Security Council and elements of the European Union) and some are directly elected by the people within the member states (e.g. The European Parliament). The nature of the institution dictates the form it must take. For example, a court which is to consider disputes between a State and its citizens should not be one made of political appointees or officials elected by the citizens. Such an institution has to maintain its independence from the parties who will be appearing before it if it has to have any credibility.
The role in which the media plays in informing the public and by extension forming public opinion is one that I have covered on a number of occasions before on this blog and so I do not intend to discuss it in this blog post, partly because I would simply be repeating myself and partly because this is already a rather lengthy blog post. I will however say this: the European Convention protects each and every individual within the 47 member states who have signed it, it can and is utilised by ordinary people out with the context of criminal matters. It is not and never has been a document protecting criminals and the decisions made based on the ECHR affect every single person in the United Kingdom in some way. The protections won in previous cases are available to anyone who should ever need them.
Should the UK withdraw from the ECHR? The simple answer is No. The ECHR and the ECtHR are essential elements of our lives, our judicial system and our politics. Their existence is essential, along with the collective responsibility of the member states, to ensuring a repeat of the terror experienced across much of Europe in the 1930s and 1940s does not occur again.