We often treat our human rights as if they are guaranteed.
It feels as though they have been woven into the fabric of our everyday lives, allowing us to act freely without fear of persecution.
Article 12 of the European Convention on Human Rights (ECHR/Convention) provides the right to marry and to begin a family life. When you decide to take that step, you expect that right to be available to you.
Yet in the current political climate, with calls for an isolationist Britain and pressure to repeal the Human Rights Act 1998 (HRA 1998), I find myself asking whether our rights have ever truly been guaranteed.
The beginning:
The ECHR was created as Europe’s response to the Second World War.
Its purpose was to prevent the return of the atrocities committed within Nazi Germany and to promote democracy by establishing the European Court of Human Rights (ECtHR). As this key piece of legislation explains, this system was intended to be “more comprehensive and efficient” than the Universal Declaration of Human Rights.
The Convention protects broad concepts such as liberty, the prohibition of discrimination and freedom from torture. Eight countries worked on the initial draft, with Britain at the forefront. The lawyers involved were nicknamed “the Architects” because of their efforts to model the Convention on the English Bill of Rights 1689.
Once enacted, many countries signed the Convention and became bound to protect the rights it contains. The Convention itself does not force governments to change their laws, but it provides a platform for citizens to challenge the safeguarding of their rights before the ECtHR.
This encourages change through democratic pressure. The doctrine of the margin of appreciation was introduced to allow flexibility, recognising that cultural and social differences across Europe require practical variation in how obligations are performed.
Today, 47 states have signed the Convention, representing the rights of around 800 million people. Belarus most recently attempted to join but was rejected because it continues to use the death penalty.
With so many states seeking membership, I find it striking that Britain is considering leaving and creating its own domestic bill of rights.
The climax:
The HRA 1998 was drafted by Tony Blair’s Labour government to incorporate Convention rights into British law.
The slogan “Bringing Rights Home” captured the intention to give these rights constitutional value and allow British people to raise human rights issues in domestic courts. This replaced the previous system, which required individuals to take cases to Strasbourg, a process that was time-consuming and expensive.
However, the Strasbourg Court was perceived by many as a threat to parliamentary sovereignty. The idea that European judges could instruct British courts became politically contentious. Controversial cases involving convicted criminals, including those relating to Robert Thompson and Jon Venables, intensified public criticism.
The resolution:
The Conservative Party began formally calling for repeal in 2012 with the publication of the Commission on a Bill of Rights. The report proposed creating a British Bill of Rights as a constitutional document, separating the United Kingdom from the ECtHR’s influence.
The reasons given often stemmed from a patriotic ethos. As the attached document notes, supporters argued that rights should be “more British and less foreign” and that this would give them symbolic value. Some even suggested adding uniquely British rights, such as the right to afternoon tea or to watch the Queen’s speech at Christmas.
The statute was also criticised for being perceived as binding and undermining sovereignty. Lawyers, however, frequently describe this as an exaggeration.
Other political parties also contributed to the debate. Labour described the HRA 1998 as a “stepping stone” toward further protection. The Liberal Democrats called for a written constitution incorporating similar principles.
Criticism:
Despite broad acceptance of the HRA 1998, the movement toward repeal has faced significant criticism.
The legal group, Justice, expressed concern that the intention was not to enhance protection but to weaken it. They emphasised that the Act has been successful in providing liberty and that enforcement has been balanced.
Amnesty International labelled the proposal “a full frontal assault on human rights.” Lawyers also criticised claims about sovereignty.
The HRA 1998 requires judges and Parliament to interpret law “taking into consideration the ECHR” only “as far as it is possible to do so.” Judges may issue declarations of incompatibility, but these do not invalidate legislation. As the attached document notes, fewer than thirty declarations were made in the first ten years of the Act. Parliament has also demonstrated its ability to resist Strasbourg, particularly in the debate over prisoner voting rights.
Importance:
The Convention and the HRA 1998 have been influential in movements for social change.
In the 1970s, they were essential in establishing greater freedom for the press during the thalidomide scandal. The government had supported the use of thalidomide despite poor testing, and years later it was linked to birth deformities among hundreds of children. An injunction initially prevented coverage of the scandal, but the editor of the Sunday Times argued that this hindered the truth and created a false perception of the government.
Declarations of incompatibility have also supported minority groups excluded by older legislation.
In Bellinger v Bellinger (2003), the Matrimonial Causes Act 1973 was found incompatible with Articles 8 and 12 because it failed to address the rights of individuals who had undergone gender reassignment surgery. This led to amendments in the Gender Recognition Act 2004.
The future:
Recent developments have been limited, overshadowed by Brexit and political uncertainty.
The pursuit of state sovereignty risks undermining the concept of human rights, which are inherent entitlements regardless of nationality, gender, race or religion. I find myself asking whether the government will target the Convention after Brexit and whether Britain will retain any influence by the time that debate arrives.
Ultimately, we must decide whether we identify more with British rights or with the universal concept of human rights.
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