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24 Jun 2022

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What is the European Convention on Human Rights?

The European Convention on Human Rights (ECHR) is an international human rights treaty that protects the rights of everyone within the 46 states that belong to the Council of Europe. Not to be confused with the European Union (with 27 members), the Council of Europe was founded after World War II to protect human rights and the rule of law, and to promote democracy. All countries across Europe, including Turkey and Ukraine, are members of the Council of Europe. The only states which are not are Belarus and Russia.

The ECHR, the Council of Europe’s flagship instrument, came into force in 1953. British MP and lawyer Sir David Maxwell-Fyfe led the drafting, building on the legal traditions of the founding members, including the UK, of the Council of Europe. The UK was the first country to ratify the ECHR in 1951.

Which rights does the ECHR protect?

Divided into 14 articles, each representing a basic human right or freedom, the ECHR protects rights including the right to life (Article 2), the right to liberty and security (Article 5), the right to a fair trial (Article 6), and the freedom of expression (Article 10). It prohibits torture and cruel or degrading treatment (Article 3), slavery (Article 4) and discrimination (Article 14).

Since its creation, the ECHR has been amended a number of times. Further rights have been added in the form of ‘protocols’ including the right to education (Article 2, Protocol 1), the right to free elections (Article 3, Protocol 1), and the prohibition on the use of the death penalty (Article 1, Protocol 13).

Not all member states are bound by all of these protocols. States choose whether or not to ratify (or ‘give formal consent to’) the protocols. For example, the UK has not ratified Protocol 4 which protects the right not to be expelled from, or refused entry to, the country of one’s nationality.

How is it enforced?

Protection of the rights within the ECHR is the responsibility of the government and parliament of each country. Individuals and countries can make an application to the European Court of Human Rights in Strasbourg (not to be confused with the Court of Justice of the EU in Luxembourg), but only if they have ‘exhausted’ (i.e. used) every domestic route in their national courts or administrative complaints procedures.

Before the final judgment, the Court might order interim relief, that is an urgent order for a country to do or not do something where there is imminent risk of irreparable harm. The final judgment will later decide whether there has been a violation of a right.

This creates a legal obligation on the member state to stop the violation and ensure it does not happen again. If the Court finds that the individual has suffered damage and that domestic law will not allow for reparation to be made, it can order that the country give ‘just satisfaction’ or an award of money as compensation. Most commonly, the Court does not award just satisfaction, as it considers the finding itself adequate satisfaction.

The amount of money will depend on the circumstances of the case. The Court may decide to award less or no money at all, for example, if the damage was due to the applicant’s own fault.

The Committee of Ministers, the decision-making body of the Council of Europe, is responsible for ensuring that member states comply with judgments. The Committee is made up of the Minister of Foreign Affairs of each member state. Secretary of State for Foreign Affairs, Liz Truss is the current representative of the UK to the Committee of Ministers.

Are states obliged to comply with judgments of the ECHR?

By joining the Council of Europe, states have undertaken (or committed) to comply with the judgments of the European Court of Human Rights. When they are found to be in breach, it is up to the country to choose how they end the violation of the right, for example through a change in the law which is causing the breach.

Some states may decide not to comply with the judgments against them. This may result in the Court finding repeated violations.

“Over 1,000 judgments are annually issued determining whether or not there has been a violation of an ECHR right.”

Historically, the UK has a strong record for compliance with the ECHR, and the number of judgments made against the UK is low. Each year, a majority of the applications to the Court made against the UK have been found to be inadmissible (i.e. not accepted by the Court), and only a minority of judgments have declared that a right has been violated. In 2021, of the 1,105 judgments issued by the Court, seven judgments concerned the UK, and only five found a violation.

How are cases decided in the ECHR?

Each year, over 50,000 applications are made to the European Court of Human Rights, and while a majority are found by a judge to be inadmissible, over 1,000 judgments are annually issued determining whether or not there has been a violation of an ECHR right.

The Court is made up of one judge from each member state. While they are elected in respect of each country, they are required to be independent and impartial. Tim Eicke is the current UK judge at the Court.

The Court sits in different formations depending on the case. A single judge will consider ‘manifestly inadmissible applications’, which refers to applications that are not within scope of the Court and unlikely to be considered on their merits. Three judges will consider a case which is already covered by well-established case law.

Cases which raise important issues may be allocated to a Chamber of seven judges, which must include the judge from the country concerned in the application. Exceptionally a Grand Chamber of seventeen judges (including the ‘national judge’) may be assembled if the case raises a serious question on the interpretation of the ECHR or could create an inconsistency with previous judgments made by the Court.

There is a ‘margin of appreciation’ in all cases of the European Court of Human rights. This means that the Court gives a degree of discretion to all member states in how they interpret the Convention, given their different legal and cultural traditions.

There is a ‘wide’ margin (or more discretion) in areas concerning, for example, a public emergency or national security. There is a ‘narrow’ margin concerning areas including absolute rights (Article 3 prohibition on torture and Article 4 prohibition on slavery and servitude), and racial or ethnic discrimination.

What are some important cases?

The European Court of Human Rights has ruled across a very wide area of issues, and landmark decisions have often related to the right to freedom of expression, respect for privacy and family life, and the prohibition on torture and degrading treatment.

“Landmark decisions have often related to the right to freedom of expression, respect for privacy and family life, and the prohibition on torture and degrading treatment.”

In one of the first cases concerning free speech and information, in 1979 the Court ruled that the UK had violated the right by prohibiting the reporting of a case concerning thalidomide taken during pregnancy which caused severe deformities in children. In 2008, the Court held that by permanently keeping fingerprints and DNA data of a person who was not convicted of a crime, the UK police had violated their right to privacy.

In two separate cases, the Court found that random strip searches of prisoners and those visiting prisons infringed Article 3 (the prohibition against degrading treatment or punishment) and the Article 8 (right to privacy).

Important cases also led to changes in UK law. Following judgments concerning the right to privacy by the Court, homosexuality was decriminalised in Northern Ireland, phone-hacking was made illegal, and employers could no longer read employees’ emails without consent.

Why is it so controversial in the UK?

The ECHR protects the rights of everyone within the member states of the Council of Europe because they are human, not because they are a citizen of a country. This can cause controversy where protecting human rights impacts politically sensitive areas (for example migration, security, criminality, or terrorism), or where a judgment by the European Court of Human Rights is seen as making decisions that should properly be up to Parliament.

One of the most controversial cases in the UK concerned prisoners’ voting rights. In 2005, the Court held that the UK was in breach of Article 3 Protocol 1 on the right to free elections by banning prisoners from voting in any election. In 2017, the UK government introduced proposals to give a temporary licence to certain prisoners to vote. This was accepted as an appropriate compromise to protecting the right while balancing other considerations.

In 2012, the ECHR issued an order to stop the deportation to Jordan of Abu Qatada, a radical cleric who had been found guilty of terrorist offences. The Court found evidence obtained under torture could be used against him in Jordan, denying him the right to a fair trial. In order to allow his deportation then Home Secretary Theresa May agreed a treaty with Jordan guaranteeing his right to a fair trial.

How does the ECHR apply in the UK?

The Human Rights Act 1998 (HRA) gives effect to the ECHR in the UK. The act was introduced as a way to “bring rights home”, and enable people to protect their rights in domestic courts, rather than face the time and financial costs of bringing a case to Strasbourg.

The HRA also sought to embed rights within national law. Under the HRA, all law must be interpreted (or understood) in a way that protects ECHR rights ‘so far as is possible’. This means that the courts cannot create new law on the basis of protecting ECHR rights.

The HRA creates a legal obligation for all public bodies – including the police, hospitals, care homes and local councils – to protect rights in all their decisions and actions. It is unlawful for a public body to act in a way that is incompatible with an ECHR right, unless legislation requires it.

No court (either in the UK or in Strasbourg) can strike down an Act of Parliament. A UK court can only declare an Act of Parliament to be ‘incompatible’ with a right, signalling to Parliament that it should consider a change to the law. Since the HRA came into force, 44 declarations of incompatibility have been issued. In all cases, save the most recent one in July 2021, government has reacted by changing the law or proposing changes.

The ECHR has stronger protection in the devolved legislatures of Scotland, Wales and Northern Ireland. Courts there can strike down laws passed by the relevant devolved legislature which violates rights. They cannot, however, strike down an Act of Parliament.

How has the Court intervened in the government’s Rwanda policy?

In June 2022, the European Court of Human Rights issued an urgent interim measure against the deportation of an asylum seeker by the UK to Rwanda. The interim measure (which is not a final judgment) ordered the UK not to deport the asylum seeker until three weeks after a final decision had been reached by the UK Supreme Court on the legality of the policy to deport asylum seekers to Rwanda.

The concern was that, once deported, the person would no longer be under the protection of the ECHR (as Rwanda is not part of the Council of Europe) and could have difficulty exercising their Convention rights. Further orders were given for other asylum seekers on the same chartered flight to Rwanda, in order to give time for their claims to be properly considered by the UK courts.

Can a state leave the ECHR?

Yes. To leave the ECHR a state must formally notify the Council of Europe of its intention to withdraw. The state ceases to be a member of the Council of Europe (and the ECHR) at the end of the financial year. None have chosen to leave so far.

“Leaving the ECHR would leave the UK without a codified and legally binding human rights instrument.”

The only state to have permanently left the Council of Europe (and the ECHR) is Russia which was expelled after a vote by the Committee of Ministers following the invasion of Ukraine in 2022.

At a domestic level, to leave the Council of Europe, and the ECHR, the UK would have to repeal the Human Rights Act 1998 through an Act of Parliament. Many Acts, including important devolution legislation concerning Scotland, Northern Ireland and Wales, refer to the ECHR and would need to also be amended.

What are the consequences for the UK if it leaves the ECHR?

Leaving the ECHR would leave the UK without a codified and legally binding human rights instrument. While a number of documents form part of the constitutional heritage of the UK, including Magna Carta, the Scottish Claim of Right Act 1689, and the English Bill of Rights 1689, none of these effectively protect the rights which are currently protected by the ECHR through the HRA. Ministers have said they intend to bring forward a British Bill of Rights to repeal and replace the HRA, which will govern the future protection of human rights in the UK.

“If the UK is no longer a member of the ECHR, it could violate international law.”

The UK has agreed to be part of the ECHR in a number of international treaties including the Good Friday Agreement (or Belfast Agreement) and the Trade and Cooperation Agreement. If the UK is no longer a member of the ECHR, it could violate international law.

The Good Friday Agreement, which is an international treaty between the UK and the Republic of Ireland, requires the ECHR to be part of the law in Northern Ireland. The Northern Ireland Protocol affirms the UK’s commitment to maintain the ECHR as part of the law in Northern Ireland. If the UK left the Council of Europe and removed the ECHR, it would violate both the Good Friday Agreement and the Northern Ireland Protocol if the ECHR no longer applied to Northern Ireland.

There is an argument that the ECHR could continue to apply in Northern Ireland but be removed from the rest of the UK (and so not violate the Good Friday Agreement nor the Northern Ireland Protocol). This would, however, create two different levels of human rights protection between Northern Ireland and the rest of the UK.

The UK-EU Trade and Cooperation Agreement (TCA) governs the post-Brexit relationship between the UK and the EU. It is separate from the Withdrawal Agreement and the Northern Ireland Protocol. It contains an obligation for both the UK and EU to continue their commitment to human rights.

Protocol on Ireland/Northern Ireland

This shared commitment to maintain human rights protections is an ‘essential element’ to the whole agreement. In general, a ‘serious and substantial’ failure to fulfil this obligation which ‘threatens peace and security or that has international repercussions’ could lead to the suspension or termination of the Agreement by the other party. The removal of the ECHR would not necessarily cause the EU to suspend or terminate the Agreement unless it led to such a ‘serious and substantial failure’.

Higher thresholds for human rights protection exist in Part Three of the TCA concerning law enforcement and judicial cooperation in criminal matters (for example, the extradition of a criminal suspect). In this area, both the UK and EU have committed to ‘giving effect to the rights and freedoms in that Convention domestically’. If the UK withdraws from the ECHR, the EU can terminate this part of the TCA immediately (Article 692 TCA) though the rest of the agreement can remain in effect.

By Dr Joelle Grogan, Senior Lecturer in Law at Middlesex University London and Research Fellow at CEU Democracy Institute, Budapest.

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