What the European Convention on Human Rights Has Actually Done For You

[Patrick Wall is studying for an LL.M. in International Law at the Graduate Institute of International and Development Studies, Geneva, as the Sir Ninian Stephen Menzies Scholar in International Law.]

Last week, the British home secretary, Theresa May, called for the United Kingdom to withdraw from the European Convention on Human Rights.

Describing ‘the case for Britain remaining in organisations such as NATO, the World Trade Organisation and the United Nations’ as ‘clear’, Ms May argued that ‘the case for remaining signatory of the European Convention on Human Rights, which means that Britain is subject to the jurisdiction of the European Court of Human Rights, is not clear’:

The [European Convention] can bind the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of governments like Russia’s when it comes to human rights. So regardless of the EU referendum, my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave but the [European Convention] and the jurisdiction of its court.

Ms May has faced a ‘huge backlash’ over her comments. Amnesty International has said that withdrawing from the European Convention would ‘strike at the very architecture of international protection’, whilst Liberty criticised Mrs May for ‘playing fast and loose’ with the legacy of one of the Conventions’ early architects, Sir Winston Churchill.

Ms May’s comments also put her at odds with colleagues on both sides of the aisle in the House of Commons. On her own side, the Ministry of Justice has confirmed that withdrawal is not government policy—for the time being, at least—while Tory MP and former attorney general Dominic Grieve said that he was ‘disappointed because it shows a lack of understanding of the positive impact the [European Convention] is for the EU’.

Across the aisle, shadow justice secretary Charles Falconer has described Ms May’s comments as ‘so ignorant, so illiberal, so misguided’:

Ignorant because you have to be a member of the [European Convention] to be a member of the EU [and Ms May supports the UK remaining in the EU].

Illiberal because…there has to be a source external to a government determining what human rights are.

And misguided because it will so damage the standing of the UK, a country that above all plays by the rules and that is going around the world saying we should comply as a world with human rights.

This is so, so appalling.

The Guardian newspaper (affectionately known to some as The Grauniad) has responded somewhat differently; it has released a film—modelled on Monty Python’s ‘What have the Romans ever done for us?’—starring Sir Patrick Stewart as a would-be Prime Minster who sees the European Convention as his ultimate nemesis (do be mindful of an expletive at the end):

Whilst the film is undoubtedly enjoyable, I do wonder whether it might do more harm than good.

As might be expected from a production for popular consumption, the film’s claims aren’t entirely accurate. In addition to suggesting—incorrectly—that the European Convention is an institution of the European Union, many of the rights that the Convention is said to have ‘given’ the British (one is reminded of God giving Moses the Ten Commandments) existed in some form well before anyone had ever thought of having a European Convention on Human Rights. Slavery, for example, was abolished in England and Wales by Lord Mansfield’s decision in Somerset v Stewart in 1772. Although their precise contours have developed since the 50s, fair trial standards and notions of privacy, freedom of religion and non-discrimination were far from unknown to the British legal system. This is recognised towards the end of the film, of course, when one of Prime Minister Stewart’s colleagues recognises the role of British lawyers and British law in drafting the Convention.

Furthermore, whilst the Good Friday Agreement certainly requires the Northern Ireland Assembly to comply with the European Convention, the suggestion that ‘we would need to make peace all over again’ if Britain withdrew is plainly untrue. WTO Agreements frequently incorporate the provisions of other treaties that are then binding on members, regardless of whether or not they are parties to the incorporated treaty.

The point is not to nit-pick over factual errors in the film. As a political enterprise, certain dramatic license is understandable. The suggestion, however, that the main achievement of the European Convention was to bestow upon a grateful British people rights that were previously unknown to them, as well as the subsequent admission that this wasn’t the case, makes the film hopelessly confused. My concern is that this confused account of the benefits of the European Convention gives fodder for those who advocate Britain’s withdrawal.

Furthermore, it obscures the real arguments in favour of the European Convention. The great innovation contained in the European Convention was not the agreement between the High Contracting Parties as to what rights were worthy of protection; the rights enshrined are broadly reflective of those in the Universal Declaration of Human Rights, which the governments of Europe were active in formulating and unanimously supported. The Convention did not enshrine the next generation of human rights, but the next generation of human rights enforcement through the establishment of a strong mechanism—the European Court of Human Rights—to hold States’ feet to the fire when the temptation to abandon principles for reasons of expediency or popularity was strong. This interpretation is supported by the travaux préparatoires and is reflected in the Convention’s preamble (‘Being resolved, as the Governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration’).

By playing a leading role in the drafting and adoption of the European Convention, the United Kingdom did the cause of human rights a great service. It clearly asserted that, to be truly meaningful and effective, human rights must be enforceable. If the UK were to withdraw, the cause of human rights would take a large backward step; not just in Britain, not just in Europe, but everywhere. After all, if this great contribution to the protection of human rights can be reversed, what else can be?