Fundamental rights / Human Rights Act, ECHR and Government accountability

What is the ECHR and why does it matter?

What is the ECHR?

The ECHR is the European Convention on Human Rights. It was drafted in the aftermath of the Second World War and the Holocaust in an attempt to protect the people from the State, make sure the atrocities committed would never be repeated, and safeguard fundamental rights.

The United Kingdom played an important role in the birth of the ECHR, with British lawyers integral to the drafting of the text, and Winston Churchill a key early advocate.

The ECHR guaranteed people’s fundamental human rights in law for the first time. The rights we are all accustomed to come from the UK signing the Convention.

Since the UK signed the Convention in 1951, it has protected us from things like torture, killing, and slavery and assures our freedom of speech, assembly, religion, privacy and much more.


What is the European Court of Human Rights?

The European Court of Human Rights (ECtHR) enforces the ECHR – in other words, it makes sure that the rights given by the Convention are protected in practice.

Until the Human Rights Act was passed in 1998, the only way that people in the UK could enforce their rights was to take a case against the Government to the ECtHR in Strasbourg.

Between 1951 and 2000, the ECtHR found many human rights violations by the UK Government against UK citizens.

Now, with the Human Rights Act in place, human rights cases are heard in domestic courts, saving a large amount of time and money for both individuals and the state.

Cases that have gone through UK courts can still be appealed to Strasbourg, but the ECtHR now finds many fewer violations because the HRA allows our own judges to take care of them before it goes that far.


What does the ECHR have to do with the European Union?

Nothing. The ECHR was launched by the Council of Europe. The Council of Europe is older than the European Union and not connected to it.

Confusingly, the Council of Europe is also not the same as the European Council, which is an institution of the European Union.

Nineteen of the 46 member states of the Council of Europe – including the United Kingdom – are not members of the EU.


What have the ECHR and ECtHR ever done for us?

There have been several important cases that have gone to the ECtHR which have protected and advanced human rights in the UK.

Freedom of expression for the press comes from a case known as Sunday Times from 1979.

The decriminalisation of homosexual acts in Northern Ireland came about thanks to a case called Dudgeon from 1981.

A case called Smith and Grady made clear that banning LGBT+ people from serving in the Armed Forces breaches human rights.

Since the Human Rights Act came into force in 2000, we can enforce the Convention rights in our own domestic courts, but the ECtHR still acts as a backstop, making important judgments relating to religious freedom (Eweida), disabled people deprived of their liberty (HL), protest (Gillian and Quinton) and more.

The ECHR and the Human Rights Act protect us every day. The HRA insists that public authorities such as Government departments, local councils, police, schools, certain care providers, and prisons, must act in a way that is compatible with the Convention rights. In this way, we are protected long before something ever gets to court.

The ECHR is a ‘living instrument’, which means that the rights protected in it will develop over time in accordance with changes to social norms etc. For example, a case called Goodwin established the right to change one’s legal gender in the UK. Staying in the ECHR and retaining the HRA means that our human rights protections can also continue to evolve with the times.


What would leaving the ECHR mean for international human rights? 

Leaving the ECHR and reneging on our obligations would undermine the UK’s credibility in criticising human rights abuses abroad, whether that is in Ukraine or China.

It would also prevent us from being able to influence the way that the ECtHR judges human rights cases.

It would also risk setting a precedent for other countries to violate individuals’ rights or to leave the ECHR, which would be a major backwards step for international human rights.


What are politicians proposing?

After the European Court of Human Rights (ECtHR) grounded the first planned flight of refugees to Rwanda, some politicians have raised the possibility of the UK leaving the European Convention on Human Rights (ECHR).

This would make the UK the first nation to voluntarily withdraw from the ECHR.

The only other European nations not signed up to the ECHR are Belarus, and Russia – which has been expelled because of Putin’s invasion of Ukraine.


If we left the ECHR, what would this mean for ordinary people in the UK?

Leaving the ECHR would put everyone’s rights at risk. The ECtHR is a person’s last resort for holding the state to account when it has abused their rights.

The Government is already planning to weaken human rights in the UK through its Rights Removal Bill, which will make it much harder for people to get justice if their rights have been abused.

Without the protection of the Human Rights Act or the ECHR, the UK Government would have the power to do whatever it wants to individuals’ rights with no threat of consequences.

Leaving the ECHR would also breach the Good Friday Agreement, which requires that the Convention be directly enforceable in Northern Ireland. This would threaten the peace settlement.

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