The urgency of renewed UK commitment to human rights

Today marks the 70th anniversary of the signing of the European Convention on Human Rights (ECHR) in Rome. On 2^nd October, we celebrated the 20th anniversary of the Human Rights Act (HRA) coming into effect.

These important milestones offer an opportunity to look back, to the substantial impact that 70 years of ECHR jurisprudence has had on our domestic law, transforming for the better the everyday lives of individuals and communities in the UK.

They also require us to examine the present, where we are faced with the situation of the UK standing in near-complete isolation, as far as democratic countries go, in attempting to unravel its basic human rights infrastructure, putting at grave risk the international system for the protection of such rights in the process.

And they serve as a useful wake-up call. We must give thought to the looming threat of a future without the ability to rely on the human rights we may be taking for granted, those that we have acquired through the process of incorporating the ECHR into UK law and generating a human rights-centred culture that was previously foreign to our legal system. This threat is acute in the light of challenges that one anticipates human rights law will be confronted with in the near future: the rise of nationalist populism, infecting liberal democracies across Europe and beyond; modern technologies intruding upon individual autonomy; persistent racial, sexual and economic inequality; global threats to the protection of public health; and the menace of environmental disaster.

From this vantage point, committing to human rights protection—in other words the protection of what, according to Hannah Arendt (in The Origins of Totalitarianism), must be thought of as “a general characteristic of the human condition which no tyrant [no government] could take away”—should be a foregone conclusion. Unfortunately, when it comes to human rights protections that originate in Europe, this is simply not the case in the UK.

The past

In his important book The Evolution of the European Convention on Human Rights, Ed Bates meticulously sketches out how the ECHR “emerged at a critical moment in European, indeed world, history.” Europe was “a war-shattered continent and there were real fears in the western democracies over the spread of communism.” “A major motivating force—and very arguably the major motivating force—for the creation of the Convention by the Western European States in 1950 was for ‘free Europe’ to come up with a human rights document enshrining its ardent belief in human rights and democracy.”

It is equally important to stress, particularly to Eurosceptic Conservatives, that it was Winston Churchill who raised the idea of a Council of Europe in 1946 and who is still regarded as one of its “founding fathers,” and indeed one of the “pioneers of Europe.” For Churchill, the creation of a “Charter of Human Rights, guarded by freedom and sustained by law” was at the centre of a post-Second World War “Movement for European Unity,” as he emphasised in his address to the Congress of Europe at The Hague on 7th May 1948. Marco Duranti, in his book The Conservative Human Rights Revolution, analytically describes how “Churchill placed himself at the head of a campaign for a European Union and European human rights court,” with the former Nuremberg trials prosecutor David Maxwell Fyfe emerging as the other key figure in the British contingent that helped give birth to the ECHR; Churchill did so by “generating popular support for the creation of European institutions,” and Maxwell Fyfe with his effective draftsmanship.

Pictures speak louder than words. Churchill doing the V-for-Victory sign, when addressing, in French, a crowd of thousands at Place Kléber in Strasbourg on 12th August 1949 to celebrate the first steps towards “the idea of a United Europe” is one that perhaps not many will be familiar with. That day he spoke of the need for “a European Parliament” with political leaders acting “not as representatives of [their] various countries and different political parties, but as Europeans.” It speaks volumes about how Churchill and the Conservative Party carried the European ideal forward in those critical post-war years. Churchill’s rapturous address put the rights of European peoples at the centre (I am translating from the French): “there are, in Europe, on both sides of the ‘Iron Curtain,’ millions of people who are here with us with all their heart. Will we never give them a chance to prosper and bloom? Will they never live with security? Will they never be able to enjoy the simple pleasures and liberties that God and Nature have afforded them?”, Churchill exclaimed; it was his duty, and the duty of his fellow European politicians, to “protect the rights and interests” of these “enormous masses of people.”

The present

Fast forward to today, when we’re celebrating 70 years of the ECHR, and you’ll see the Conservatives moving fast in the opposite direction, adopting an ahistorical, isolationist approach, one that ultimately culminates with distancing the UK from the core system of European human rights protection, leading to domestic human rights inevitably contracting. One wonders what Churchill would make of this historic paradox; how did the UK move from being a “pioneer” and “founding father” of the Council of Europe to an enemy of the Council of Europe, he might ask. David Cameron, Theresa May, Boris Johnson, Dominic Raab, Dominic Cummings and Suella Braverman might have a hard time explaining to him now how that happened.

I have recently discussed, in the European Human Rights Law Review, the Eurosceptic, anti-human rights ideology that these leading Conservative politicians stand for. My analysis there had missed the following piece, published in the Times in 2014, by Raab; “This charter for criminals deserves the death penalty,” read the title, with the subtitle adding: “Replace the Human Rights Act and we can keep Europe out of our courts.” The indiscriminate antipathy for European human rights protections is expressed with such force; to fully grasp the risk that the HRA and ECHR are facing post-Brexit, you must appreciate just how deep this ideology now runs within the governing party.

The government’s ambiguous narrative on human rights, which dates back to at least the 2015 Conservative manifesto and its pledge to repeal the HRA, and extends to the 2019 manifesto promise to “update” the Act, creates uncertainty and fear about the future and damages the UK’s international reputation. As I have previously argued for this magazine, the Eurosceptics in government now spy a chance to fulfil their long-held ambition of withdrawing from the ECHR, repealing the HRA or significantly undermining its effect, as indicated by the fact that they have refused to commit to the ECHR in the context of the ongoing negotiations with the EU, and have indeed already begun the process of “opting out” from parts of the Convention with the Overseas Operations Bill.

The future

To understand what a potential future looks like without the ability to resort to the full panoply of protections that the ECHR—through the HRA—currently affords us in the UK, we need to give fresh thought to how the Convention has positively influenced our daily lives.

Along with a group of independent experts committed to the protection and enhancement of human rights—scholars, legal professionals, politicians and NGO experts—we at the Knowing Our Rights project did just that on the 20th anniversary of the HRA. We collectively produced a short, but fairly comprehensive, list, providing illustrations of the manifold ways in which the Convention has improved individual rights protections in the UK. We stated there that:

The Act has enhanced the rights of LGBT+ people and reduced discrimination.  

It has effected a huge change in the way that people with learning disabilities are treated.

It has protected British soldiers, by outlawing the deployment of equipment regarded as inadequate or outdated. It has brought justice to the families of military personnel who have lost loved ones through negligent action on the part of the Ministry of Defence.

It has been instrumental in supporting migrants’ access to basic services like health and shelter. 

It has meant that bereaved families of those who die in custody or detention are able to secure accountability. It has transformed how we investigate killings by state agents.

It has led to a rights-focused inquest system, helping bring justice for the Hillsborough 96. It creates hope that justice will be brought to the 72 innocent people who tragically perished at Grenfell Tower.

It has revolutionised criminal procedure, developing our existing common law traditions and entrenching constitutional rights.

It has reinforced the right to a fair trial, by giving effect to the right to legal assistance in pre-trial proceedings and preventing erroneous convictions.

It has strengthened our commitment to oppose the use of torture across the world, by preventing people from being sent overseas to face unfair trials tainted by torture.

The Act has had a major impact on the parole system, ensuring the fairness of parole proceedings.

It has created effective protections for our privacy, such as in relation to the interception of private communications, the indefinite retention of DNA profiles or, most recently, the use of live automated facial-recognition technology by the police that was not in accordance with the law.

It has put the right to freedom of expression on a statutory footing in the UK, and enhanced press freedom by providing protection against the disclosure of journalistic sources.

It has protected the rights of asylum seekers and refugees.

It has prohibited corporal punishment in schools, and led to greater clarity on the display of religious and charity symbols.

More broadly, the HRA has mandated our courts to apply human rights norms. Parliament has remained sovereign but the Human Rights Act has entrenched dignity, equality and humanity into our law. 

We have shared this list—in the form of a letter—with Conservative MPs and peers, requesting that they reflect upon the highly positive influence the Act has had on the lives of UK citizens. We requested that they work to ensure the UK does not become a pariah in the Council of Europe by actively pursuing policies that undermine the effect of what is broadly considered the most successful international human rights framework in the world.

The 70th anniversary of the ECHR provides an opportunity for us to repeat this message: it is high time the UK government renewed its commitment to international human rights. We should stop backtracking on what our legal heritage and existing need to future-proof our rights demand of us as a country.

 

“70 years of the European Convention on Human Rights: A Celebration” was hosted by Dimitrios Giannoulopoulos on 4^th November. Prospect’s Senior Editor Alex Dean spoke at the conference. A recording will be available soon via the Knowing our Rights research project