European Convention on Human Rights

1. European Convention on Human Rights and the European Court of Human Rights

2. Zurich: 19th September 1946 And what is the plight to which Europe has been reduced? …Over wide areas a vast quivering mass of tormented, hungry, care-worn and bewildered human beings gape at the ruins of their cities and homes, and scan the dark horizons for the approach of some new peril, tyranny or terror. Among the victors there is a babel of jarring voices; among the vanquished the sullen silence of despair. …Yet all the while there is a remedy which, if it were generally and spontaneously adopted, would as if by a miracle transform the whole scene, and would in a few years make all Europe, or the greater part of it, as free and as happy as Switzerland is today. What is this sovereign remedy? It is to re-create the European Family, or as much of it as we can, and provide it with a structure under which it can dwell in peace, in safety and in freedom. We must build a kind of United States of Europe. In this way only will hundreds of millions of toilers be able to regain the simple joys and hopes which make life worth living. …There is also that immense body of doctrine and procedure, which was brought into being amid high hopes after the First World War, as the League of Nations. The League of Nations did not fail because of its principles or conceptions. It failed because these principles were deserted by those States who had brought it into being. It failed because the Governments of those days feared to face the facts and act while time remained. This disaster must not be repeated. …We must re-create the European family in a regional structure called, it may be, the United States of Europe. The first step is to form a Council of Europe.

3. Strasbourg: 17th August 1949 Then there is the question of human rights… We attach great importance to this… [W]e hope that a European Court might be set up, before which cases of the violation of [human] rights in our own body of twelve nations might be brought to the judgment of the civilized world. Such a Court, of course, would have no sanctions and would depend for the enforcement of their judgment on the individual decisions of the States now banded together in this Council of Europe. But these States would have subscribed beforehand to this process, and I have no doubt that the great body of public opinion in all these countries would press for action in accordance with the freely given decision. Winston Churchill, Consultative Assembly of the Council of Europe

4. History: Convention & Court • Aftermath of WWII • Two purposes • to ensure the protection of certain fundamental rights and freedoms • to contribute to the establishment of stable democracies governed by the rule of law across Europe • Congress of Europe at The Hague 7-11 May 1948 • Council of Europe founded 1949: Treaty of London • Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the UK • ECHR signed on 4 November 1950 in Rome • ECHR entered into force 3 September 1953 • But, UK opposed setting up Court and only recognised

5. David Maxwell-Fyfe (1900-67) • Lawyer • Prosecutor at Nuremburg • Rapporteur on Committee drafting EHCR • Conservative MP • Supported Labour’s 1948 British Nationality Act (unrestricted right of Commonwealth citizens to enter UK: “…hospitality to everyone from every part of our Empire”) • As Home Secretary, refused to commute Derek Bentley’s death sentence • 1956: opposed abolition of death penalty, but supported restrictions • Opposed homosexual rights (Wolfenden): anti “buggers’ clubs” • Supported Suez 1956 • Brother-in-law of Rex Harrison (actor)

6. UK Scepticism from the start • 1950: UK opposed setting up European Court and voted against compromise • UK did not recognize court or allow individual petition until 1966 • First UK case 1975: • UK judge on the case issued separate opinion • He criticized ‘heavy inroads on some of the most cherished preserves of governments in the sphere of their domestic jurisdiction’ • He demanded ‘a cautious and conservative interpretation’ of the ECHR by the ECtHR

7. The Convention • 3 Sections: • Fundamental freedoms and rights: all signatories must guarantee • Workings of the European Court of Human Rights (ECtHR) • Miscellaneous provisions • Rights can be: • Absolute e.g. prohibition of slavery and torture • Derogated (emergencies) • Limited e.g.the right to private life (art. 8), the freedom of thought, conscience and religion (art. 9), the freedom of expression (art. 10) and the freedom of assembly (art.11) may be restricted if the limitations: • are prescribed by law • serve a purpose specified in the respective article • are necessary in a democratic society • Fair balance between conflicting rights

8. “Margin of Appreciation” • ECHR obliges member states to secure certain rights, but it is silent as to how precisely they have to meet this obligation • States have a margin of appreciation when ensuring the rights enshrined in the Convention • If different rights collide, member states have a degree of discretionas to which rights they prioritize • States have some discretion when deciding what terms like ‘national  security’ mean • National authorities and courts are better positioned to assess the scope and meaning of certain values

9. Convention Contents • 18 articles in total: • Article 1: Obligation on signatory states to guarantee • Articles 2-18: Rights and Freedoms • Articles 19-51: Workings of ECtHR • Protocols: subsequent changes and additions

10. ECHR Rights and Freedoms • Article 2: Right to life • Article 3: Prohibition of torture • Article 4: Prohibition of slavery and forced labour • Article 5: Right to liberty and security • Article 6: Right to a fair trial • Article 7: No punishment without law • Article 8: Right to respect for private and family life • Article 9: Freedom of thought, conscience and religion • Article 10: Freedom of expression

11. ECHR Rights and Freedoms - contd • Article 11: Freedom of assembly and association • Article 12: Right to marry • Article 13: Right to an effective remedy • Article 14: Prohibition of discrimination • Article 15: Derogation in time of emergency • Article 16: Restrictions on political activity of aliens • Article 17: Prohibition of abuse of rights • Article 18: Limitations on use of restrictions on rights

12. Protocols • ECHR has evolved since its first publication by a series of changes called Protocols • 6 current protocols, confusingly numbered 1*, 4, 6, 7, 12 and 13 • Published between 1952 and 2002 • Not all member states have signed and ratified all 6 * The first protocol has no number: it’s simply called “Protocol”

13. Protocol [1] • Paris 1952 • Protection of property • Right to education • Right to free elections • Monaco and Switzerland signed but not ratified

14. Protocol 4 • Strasbourg 1963 • Prohibition of imprisonment for debt • Freedom of movement • Prohibition of expulsion of nationals • Prohibition of collective expulsion of aliens • Turkey and UK signed but not ratified; Greece and Switzerland neither signed nor ratified

15. Protocol 6 • Strasbourg 1983 • Prohibition of death penalty (except in times of war) • Russia has signed but not ratified

16. Protocol 7 • Strasbourg 1984 • Procedural safeguards relating to expulsion of aliens • Right of appeal in criminal matters • Compensation for wrongful conviction • Right not to be tried or punished twice • Equality between spouses • Germany, the Netherlands and Turkey signed but not ratified • UK neither signed nor ratified

17. Protocol 12 • Rome 2000 • General prohibition of discrimination • Ratified by only 17 (of 47) countries • Bulgaria, Denmark, France, Lithuania, Malta, Monaco, Poland, Sweden, Switzerland and the UK have not signed • UK: agrees in principle but wording too wide

18. Protocol 13 • Vilnius 2002 • Abolition of the death penalty (no exceptions) • Armenia signed but not ratified; Azerbaijan and Russia have not signed

19. Council members • 1949: Belgium, Denmark, France, Ireland, Italy, Luxembourg, Netherlands, Norway, Sweden, UK, Greece*, Turkey • (* except junta 1967-74) • 1950: Iceland, Germany • 1956: Austria • 1961-5: Cyprus, Switzerland, Malta • 1976-78: Portugal, Spain, Liechtenstein • 1988-92: San Merino, Finland, Hungary, Poland, Bulgaria • 1993-4: Estonia, Lithuania, Slovenia, Romania, Andorra • 1995-6: Latvia, Albania, Moldova, Macedonia, Ukraine, Russia, Croatia • 1999-2007: Georgia, Armenia, Azerbaijan, Bosnia and Herzegovina, Serbia, Monaco, Montenegro • 47 countries: all except Belarus, Kazakhstan and Vatican City

20. ECtHR Facts and Figures 2013 • 2013 (total): • 66k applications accepted • 90k applications ruled invalid • 3659 applications grouped into 916 judgments • 797 violations found (78%) • 99.9k pending cases • 2013 (UK) • 912 applications accepted (1.4%) • 1633 applications ruled invalid (1.8%) • 19 application grouped into 13 judgments (0.5%) • 8 violations found (62%)

21. Violations 2013 • UK represented 1% (8 out of 797) violations • Nearly half from Russia, Turkey, Romania, Ukraine and Hungary

22. Violations 2013

23. ECtHR Facts and Figures 1959-2013 • Total • 644k applications accepted • 519k applications ruled invalid • 23k applications grouped into 17k judgments • 14k violations found (84%) • UK • 22k applications accepted • 19k applications ruled invalid • 576 applications grouped into 499 judgments • 297 violations found (60%) • (Friendly settlements / striking our reduces judgment count)

24. Violations 1959-2013

25. Violations 1959-2013

26. Human Rights Act 1998 • Available to all UK residents (not just UK nationals) • Its effect: • Judges must read and give effect to legislation (other laws) in a way which is compatible with the Convention rights; • It is unlawful for a public authority to act in a way which is incompatible with a Convention right. • “Preserves the long-held doctrine of parliamentary sovereignty” (Liberty website) • Courts must ‘take into account’ any decisions made by the European Court of Human Rights, but only to the extent that the Court considers them to be relevant • HRA makes a remedy for breach of a Convention right available in UK courts, without the need to go to the ECtHR

27. Arguments in favour of keeping HRA • Reduces potential for ECtHR cases • Leaving would set poor example to other European Council members with poor Human Rights records, e.g. Russia, Turkey • “Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British?” (Lord Bingham 2009 speech) • HRA written into Scottish devolution and Good Friday Agreement

28. Opponents and myths • No deportation because of pet cat (Theresa May, Tory conference 2011) • Life sentences banned (Tory Bill of Rights proposals, Oct 2014) • Supply of heroin and gay porn to prisoners is a right (Daily Mail 13 Aug 2014 – correction on 28 Sept) • ECtHR judges “unelected” (elected by Parliamentary Assembly; 18 UK MPs in Ass’y – but UK judges are unelected!) • Sunday Telegraph 2011 misreporting of “Gurkha killer” deportation case • ECHR will force CofE vicars to conduct gay marriages • Theresa May article (Feb 2013) claiming new law is needed to tell UK judges Art. 8 (family life)is not absolute

29. Tory Arguments for Change • Recent judgments not what original drafters intended • Mission creep • HRA undermines sovereignty of parliament • Strasbourg court decision directly binding on UK courts

30. Tory Proposals • Restore common sense and put Britain first • ECtHR no longer binding over UK courts – becomes advisory • Proper balance between rights and responsibilities • Objectives: • Repeal HRA • Text of original ECHR into primary UK legislation • Clarify Convention rights: balance between rights and responsibilities • Break formal link between UK courts and ECtHR • End ability of ECtHR to force UK to change law • Prevent laws being rewritten through “interpretation” • Limit use of HR laws to most serious cases • Limit reach to UK (to protect UK armed forces abroad) • Amend Ministerial Code to remove ambiguity