The early days

The European Convention on Human Rights – more formally, the Convention for the Protection of Human Rights and Fundamental Freedoms – was opened for signature on 4 November 1950 in Rome and the UK was among the first group of signatories. It was ratified and entered into force 70 years ago today, on 3 September 1953. The Convention’s principal authors were a Frenchman, a Belgian and a Scot: Pierre-Henri Teitgen, Fernand Dehousse and David Maxwell Fyfe (later Lord Chancellor Kilmuir).

As early as 1943, Winston Churchill had concluded that the post-war reconstruction of Europe could only be achieved if the nation-states were prepared to come together under some kind of supranational body with effective supervisory powers. In a radio broadcast in March of that year, he called for the foundation of a supranational European forum:

“… it is upon the creation of the Council of Europe and the settlement of Europe that the first practical task will be centred … In Europe lie most of the causes which have led to these two world wars. In Europe dwell the historic parent races from whom our Western civilization has been so largely derived. I believe myself to be what is called a good European and I should deem it a noble task to take part in reviving the fertile genius and in restoring the true greatness of Europe … we must take as our foundation the lofty conception of freedom, law and morality which was the spirit of the League [of Nations]. We must try … to make the Council of Europe, or whatever it may be called, into a really effective league with all the strongest forces concerned woven into its texture, with a high court to adjust disputes and with forces, armed forces, national or international or both, held ready to enforce these decisions and prevent renewed aggression and the preparation of future wars” [emphasis added].

In a speech at the University of Zurich in September 1946 – by which time he was Leader of the Opposition – he returned to the theme:

“We must recreate the European family in a regional structure called, it may be, the United States of Europe, and the first practical step will be to form a Council of Europe. If at first all the States of Europe are not willing or able to join a union we must nevertheless proceed to assemble and combine those who will and who can. The salvation of the common people of every race and every land from war and servitude must be established on solid foundations and must be created by the readiness of all men and women to die rather than  submit to tyranny. In this urgent work, France and Germany must take the lead together. Great Britain, the British Commonwealth of Nations, mighty America – and, I trust, Soviet Russia, for then indeed all would be well – must be the friends and sponsors of the new Europe and must champion its right to live. Therefore I say to you, ‘Let Europe arise!'”

For his part, Teitgen, who had fought in the French Resistance, famously argued that only a justiciable Convention would prevent a repetition of Germany’s experience of dictatorship by stealth:

“Democracies do not become Nazi countries in one day. Evil progresses cunningly… one by one, freedoms are suppressed in one sphere after another. Public opinion and the entire national conscience are asphyxiated. And then, when everything is in order, the ‘Führer’ is installed and the evolution continues even to the oven of the crematorium. It is necessary to intervene before it is too late … An international Court, within the Council of Europe, and a system of supervision and guarantees, could be the conscience of which we all have need.”

Maxwell Fyfe, who had been the UK’s Deputy Prosecutor at Nuremberg (where he did most of the prosecutorial leg-work), agreed. For a Convention to be effective and enforceable, each signatory would have to make a firm commitment to make it part of its domestic law. Like Teitgen, he believed that

“a Court, with its jurisdiction accepted by formal agreement, should be established before which complaints against any member State of falling below the standard should be examined.”

And so it turned out. The Council of Europe itself was brought into being on 5 May 1949 by the Treaty of London. The Court was established in January 1959, sat for the first time on 23 February of that year and delivered its first judgment in November 1960 in Lawless v Ireland (No.1) [1960] ECHR 1 – a procedural judgment (and a curious example of nominative determinism) in which Mr Lawless challenged his internment without charge or trial on suspicion of being a member of the IRA. (He was ultimately unsuccessful: see Lawless v Ireland (No.3) [1961] ECHR 2.)

Some 25 years on, Maxwell Fyfe wrote that he and his colleagues

“had succeeded in doing what the United Nations had failed to do, namely, to create an enforceable convention guaranteeing democratic rights … I do not want to be a boring ‘proud father’, but I think I am entitled to be glad that I have done something positive as well as negative in regard to tyranny, which so many of my generation in the twentieth century have accepted without a murmur.”

And seventy years on?

Maxwell Fyfe could have added that the ECtHR as it has developed has owed a surprising amount to the common law tradition, especially the provision for minority/dissenting judgments and its readiness to cite its previous judgments – neither of which is a common feature of civilian/Napoleonic systems. Moreover, there is evidence that the interaction continues: for example, the then President of the Court, Róbert Spanó, and Judge Tim Eicke told the UK Joint Committee of Human Rights in 2021 (in answer to the Committee’s question 3) that

Nevertheless, the UK’s adherence to the Convention remains a matter of some considerable controversy, particularly among Conservatives, not least as a result of the Court of Appeal’s recent majority decision in R (AAA (Syria) & Ors) v Secretary of State for the Home Department [2023] EWCA Civ 745 reversing the High Court’s judgment that Rwanda was a safe third country to receive deported illegal migrants. (For a note on that judgment, see Jonathan Metzer, Court of Appeal upholds challenge to Rwanda removals policy – an extended look.) 

The Government has said that it plans to appeal to the Supreme Court, and the judgment has triggered further discontent in some parts of the Conservative Party about the impact of Convention rights on domestic law. Danny Kruger, MP for Devizes, has been reported as saying that “Following the decision … to abandon the planned Bill of Rights Bill, the Government should seek to renegotiate the ECHR with our allies or, failing that, unilaterally withdraw and replace the ECHR with a new human rights framework”. The former Secretary of State at DLUHC, Sir Simon Clarke (Middlesbrough South and East Cleveland), tweeted “We have to be able to control our borders. If the ECHR continues to forestall this, we have to revisit the question of our membership.” Writing in iNews, the deputy political editor of The Spectator reported an unnamed “former government aide” as telling her that “It would be Brexit part 2. We would campaign on Stop the Boats and it would get our base out”. On the other hand, Home Secretary Suella Braverman told the BBC that the ECtHR was “politicised” and “interventionist”, but stopped short of saying the UK should leave: “No-one’s talking about leaving the ECHR right now. We are working to deliver our plan”.

The issue seems to be a moving target, and Conservative advocates of withdrawal may have been given pause for thought by a recent poll reported in The Times which suggests that less than a quarter of the public thinks that the UK should leave the Convention and that an election pledge to withdraw would cost the Conservatives twice as many votes as they would gain. 

In conclusion

Not even their most ardent supporter would claim that the Treaty and the Court are perfect. The Court’s caseload means that progress on individual applications can be agonisingly slow; its own Questions & Answers for applicants states that “In view of the current backlog of cases, you may have to wait a year before the Court can proceed with its initial examination of your application” – and that initial examination is only the first step in what can be a long process.

Sometimes the Court may have given too wide a margin of appreciation to states parties and been slower than one might have wished to move things forward. I am not alone in my belief that the numerous rulings that a ban on wearing the hijab does not violate Article 9 were unfortunate. I also think that the Grand Chamber’s decision when it reversed the section judgment in Lautsi and at [72] described a crucifix on the classroom wall in a state school as a “passive symbol” was slightly eccentric at the very least. That said, however, it is far, far, easier to criticise a judgment from the sidelines than to write it oneself. And as Michael White rather tartly observed in The Guardian on the day after the section judgment in Lautsi was handed down: “Crucifixes? Italy? Where did Soile Lautsi think she was moving to live? Thailand? What will she campaign to ban next? Pizza, the Mafia, bling, cheating at football?”

But even if its judgments are sometimes open to possibly justified criticism, no tribunal gets it right every time, and without the Court and the Convention we would still be entirely dependent on a common law, freedom-based approach to religious manifestation instead of the rights-based model that is gradually supplanting it. I readily concede that the two models are not simple binary alternatives, but without the ECHR, the Human Rights Act 1998 and the cultural changes that flowed from them:

• how much longer would it have taken for male same-sex relationships to be legalised in Northern Ireland had it not been for Dudgeon (which, it should be noted, predates the Human Rights Act 1998)?

• could Ms Holland have successfully pleaded unfair dismissal when her employers rubbished her Wiccan religion and sacked her after she had changed shifts to celebrate a Wiccan feast?

• would Mr Nicholson’s belief in man-made climate change have come to be regarded as a protected philosophical belief?

• would the Supreme Court have decided Hodkin as it did?

After the announcement that the Government would not be proceeding with Dominic Raab’s Bill of Rights Bill, now withdrawn, The Times quoted Raab as saying “All the wrong people will celebrate”.

One of whom is…

Frank Cranmer

Appendix

The President of the European Court of Human Rights, Judge Síofra O’Leary, made the following statement yesterday, in advance of the 70th anniversary:

“For seventy years, the European Convention on Human Rights has played a crucial role in preserving and protecting the common European values of pluralist parliamentary democracy, the rule of law and the indivisibility and universality of human rights across a legal space now serving 700 million persons.

When ratifying the Convention, the member States of the Council of Europe committed to a unique international system for the protection of human rights with the external supervision of the European Court of Human Rights in response to individual and inter-State complaints at its core. They reaffirmed this commitment at the 4th Summit of the Heads of State and Government in Reykjavik last May.

Since the entry into force of the Convention the Court has dealt with well over 1 million applications and handed down more than 26,000 judgments and many thousands of decisions. Through these judgments and decisions, the Court has sought to defend “the common public order of the free democracies of Europe with the object of safeguarding their common heritage of political traditions, ideals, freedom and the rule of law”. The judgments of the Court have saved many lives, transformed thousands of others, and contributed to the bettering of our societies.

By holding States to account the Court seeks to maintain and foster democratic stability and the effective functioning of the rule of law across the Council of Europe legal space. Through the exercise of its residual jurisdiction in relation to complaints lodged against the Russian Federation, the Court seeks to ensure that a former Contracting Party cannot evade, retroactively, its international legal obligations.

As evidenced by the invasion of Ukraine, instances of democratic erosion in transitional and previously stable democracies, rule of law backsliding, or signs of regression when it comes to issues such as equality or societal responses to gender violence, some of the fundamental values enshrined in the Convention are under threat in different parts of Europe and beyond. However, this 70th anniversary reminds us of what the Convention and the Court, as the ultimate guarantors of human rights across our continent, alongside domestic democratic and judicial systems, continue to achieve.

At this critical point in Europe’s history, we should treasure the Convention’s special character as a treaty for the collective enforcement of human rights and fundamental freedoms and remember our collective responsibility to pass on this unique international protection mechanism to future generations.”