Firstly, let’s clarify something, there are two ECHR’s and they’re both related but also very different and I think people are conflating the two which is causing some confusion.
European Convention On Human Rights (ECHR)
This was drafted in 1950s by the Council Of Europe[1]Wikipedia: Council of Europe (of which the UK is still a member) and was put in place to protect human rights and political freedoms of people living in Europe after the horrors of World War II[2]Wikipedia: European Convention on Human Rights.
The convention came into force on the 3rd September 1953 and was adopted by all 46 member of the Council of Europe.
The convention is broken down into 18 articles and a series of protocols [3]Amnesty International: Human Rights in The UK.
The articles covers the following points:
- Article One – That signatories to the ECHR agree to respect the rights listed out in the convention
- Article Two – The right to life
- Article Three – The right not to be tortured/receive degrading treatment
- Article Four – Prohibits slavery
- Article Five – The right to liberty (unless you’re convicted of a crime)
- Article Six – The right to a fair trial
- Article Seven – Bans retroactive criminalisation – you can’t be convicted of a crime if it’s illegal now but wasn’t at the time you committed the offence
- Article Eight – The right to privacy & a family life
- Article Nine – The right to freedom of religion
- Article Ten – The right to freedom of expression
- Article Eleven – The freedom of “association” – that’s the right to assemble, form unions etc.
- Article Twelve – The right to marriage. It’s important to note here that the ECHR only applies to marriage between a man and a women. They have been asked to amend the convention in order to include same-sex marriage and have declined to do so. This means that it’s up to a country to decide rules surrounding same-sex marriage but different-sex marriage is protected under the ECHR.
- Article Thirteen – The right to effective remedy, or essentially compensation for wrongdoings against you[4]Wikipedia: Legal Remedy
- Article Fourteen – Prohibits discrimination (potentially under limitless grounds due to the wording)
- Article Fifteen – How the ECHR can be suspended under certain circumstances such as war or a public emergency
- Article Sixteen – Restrict the political acts of foreign parties
- Article Seventeen – You cannot use the ECHR to restrict the rights of people in the name of another human right
- Article Eighteen – Permitted restrictions. For example, under article 5 I have a right to liberty, however that right will be waived if I have committed a crime and need to be detained in order to receive my Article 6 right, a fair trial.
The protocols – which are essentially additions and amendments to the original convention – cover things like the right to own property, the right to an education, restricts the death penalty and more.
It’s important to note that not all countries have to agree (in certain cases) to a protocol addition/amendment for it to be ratified, and not all countries have to adopt a protocol.
For example, Protocol 12 further amends Article 14 – Discrimination – and the UK government refused to sign it stating that the wording was too broad and may increase the risk of additional spurious cases being brought as people tried to test the extent of the protocol.
European Court Of Human Rights (ECtHR)
The Convention established the European Court of Human Rights (ECtHR)[5]European Court Of Human Rights as an organisation to make judgements on whether people’s rights under the ECHR had been breached by a nation state.
Any person who feels their rights have been violated under the Convention by a state party can take a case to the European Court of Human Rights.
This court can overrule any judgement made by the state’s courts (including the Supreme Court in the UK) and is a legally binding ruling for anyone who is signed up to the Convention on Human Rights.
In the case of the Rwanda deportation flight an Iraqi national made a case to the ECtHR[6]The Guardian: What is the ECHR and how did it intervene in UK’s Rwanda flight plans? who provided an interim decision blocking his removal from the UK to Rwanda due to a breach of the ECHR.
This then gave grounds for the other six people on the flight to have their cases heard by the the ECtHR and so the flight was scrapped.
Why Are We Still Involved In ECHR After Brexit?
The European Convention on Human Rights and the European Court of Human Rights are separate from the European Union and are a part of The Council Of Europe.
You don’t have to be an EU member state to be part of the Council of Europe (and vice versa).
There are 27 EU member states[7]Wikipedia: European Union, but 46 member states in the Council of Europe and 90 non-member states are a parties to Council of Europe treaties or similar [8]The Council of Europe’s Relations with Non-Member States.
How Is The ECHR Tied To The Good Friday Agreement?
It’s a detailed subject which requires it’s own article but the basics of the The Good Friday Agreement, signed in April 1998 [9]Wikipedia: The Good Friday Agreement, relates to the relationship between Westminster and the ruling party in Northern Ireland, setting out a devolved system of Government and the rights of the citizens.
The issue is that The Good Friday Agreement codified aspects of The European Convention on Human Rights into it[10]The New Statesman: Doesn’t the government know that leaving the ECHR would breach the Good Friday Agreement?. If the UK were to withdraw and replace it with a Bill of Rights, this could be at odds with The Good Friday Agreement putting it in jeopardy.
It’s not just The Good Friday Agreement that is an issue, the devolved governments of Wales and Scotland will almost certainly face legal issues if the UK withdraws from the ECHR, with some saying it will push the agenda of Scottish independence even more to the forefront of the nation’s political agenda.
What Are The UK Planning To Do About The ECHR?
The Human Rights Act was adopted in 1998 [11]Wikipedia: Human Rights Act 1998 and brought the rights contained in the European Convention on Human Rights into UK law meaning that a person can have their ECHR reviewed in a UK court without the need to go to the ECtHR.
There has been talk for some time that the Conservative Government are looking to remove the Human Rights Act from UK Law. In fact back in 2005, Michael Howard declared they were going to “overhaul or scrap it”.
In 2015 and 2019, the Conservatives added a “Bill of Rights” [12]Full Fact: The Conservative Party’s Bill of Rights( as a manifesto pledge. In order to do this, they would have to completely remove the Human Rights Act (1998) from UK law and also withdraw from the European Court of Human Rights which effectively means that we’re no longer signed up to the European Convention on Human Rights.
A consultation on the changes was held between 14th December 2021 and 19th April 2022[13]Gov.UK: Human Rights Act Reform: A Modern Bill of Rights and lays out the changes that would be made to the UK Law.
The consequences of removing the Human Rights Act and Leaving the ECtHR could mean that there are weakened protections for UK citizens under the Bill of Rights, with the Government in power being sole arbiter of any and all legal rulings with no additional oversight from an external body.
The Government would also have the right to add to, remove, amend or pause and of the rights at any time as it suited them.
What’s Next For The Conservative Party?
The Deputy Prime Minister, Dominic Raab, has stated that he doesn’t want the UK to leave the European Convention on Human Rights but rather have the Court’s ability to intervene limited[14]Yahoo News: UK has no plan to leave ECHR, Raab says.
Some Tory MPs have publicly stated they want the UK to leave, citing the speed of the ruling on the Rwanda flight as a reason.
Only two states have left the European Convention on Human Rights [15]London Economic: UK would not be in good company if we quit the European Convention on Human Rights.
The first was Greece in 1969 who left before they were expelled after there was a military coup in the country. They rejoined 5 years later after democracy was restored to the county.
The second was Russia after their invasion of Ukraine but they would have been expelled anyway thanks to their actions.
Critics of leaving the Court (and by association convention) pointed out the majority of cases are decided by UK courts and rarely get escalated to the ECtHR. They also argue that currently British courts don’t have to indiscriminately follow the rulings in the EU court but merely “take them into account”.
Removing The Human Rights Act from UK law and instituting a Bill of Rights won’t be an easy process for the Conservative party to push through, they will have to have a majority in the House of Commons and then hope that it passes the scrunity of the Lords without being held up.
As The Conservative Party have been stating they are going to do this for 17 years and counting, I don’t think that we will see an amendment to the law any time soon but we will see more and more challenges under the ECHR if the government continues with its plans to report migrants to Rwanda.
Finally, if you want a comedy take on “What has the ECHR ever done for us?” The Guardian has a fantastic video featuring Patrick Stewart as the Prime Minister.
Other Sources
- The Week “European Convention of Human Rights: The pros and cons of leaving” (26-04-2016) [16]The Week: European Convention of Human Rights: The pros and cons of leaving
- The Guardian “UK to challenge court ruling that halted Rwanda deportations, says minister” (15-06-2022)[17]The Guardian: UK to challenge court ruling that halted Rwanda deportations, says minister
- The Guardian “It took a human rights court to halt No 10’s Rwanda flight – and act with basic humanity” (15-02-2022)[18]The Guardian: It took a human rights court to halt No 10’s Rwanda flight – and act with basic humanity
Katy is the editor-in-chief of FlippingHeck.com a blog about Self-Improvement, Productivity and Small Business Tips. When she’s not working, she enjoys gaming, making music and Reviewing Things.
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