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The Conservatives’ attack on the ECHR: A Long Time Coming

Ciara Garcha investigates the history of the 'British Bill of Rights' and considers how it would impact the UK's relationship with the European Union.

In 1951, the Parliament of the United Kingdom became the first nation to ratify the European Convention on Human Rights (ECHR). The Council of Europe had drafted the document in Strasbourg in 1949, and two years later the UK became the first European country to formally commit itself to the embryonic concept of human rights.

A leaked recording, however of the Foreign Secretary, Dominic Raab, stating that the UK will not limit itself to striking trade deals with countries that have the ECHR as a minimum standard of human rights has exposed the strain under which the UK’s commitment to the principle European framework for human rights is. Proposals for the UK to withdraw from the ECHR and replace it with a ‘British Bill of Rights’, composed by the government alone, have arisen. But, in a more unstable and uncertain world than ever, it is clear that the UK must remain committed to the ECHR. 

In the recording, leaked to the Huff Post UK and published on 16th March, Raab can be heard advocating for Britain to trade “liberally around the world”. He goes on to add that if Britain should “restrict its (trade deals) to countries with ECHR-level standards of human rights”; the country would not be able to make “many trade deals with the growth markets of the future”. These comments followed a report by The Times that Britain was looking into doing a trade deal with China, to replace trade between the EU and China, worth $709 billion in 2020. Concerns were raised about the UK entering into a new economic partnership with China, given the latter’s poor human rights record, including claims of appalling human rights abuses against the Uighur Muslims and severe limits on the freedom of expression. Shadow Foreign Secretary, Lisa Nandy, declared the comments to be proof that the government was “entirely devoid of a moral compass and riddled with inconsistencies” and Amnesty International UK commented that Raab’s remarks would “send a chill down the spine of embattled human rights activists across the globe”.

Yet, only a matter of days later on 22 March, the UK imposed sanctions on four Chinese officials over the “appalling violations” of human rights against the Uighur people. Rather than talking up a trade deal with China, Raab described the mistreatment of Uighur Muslims as “one of the worst human rights crises of our time” and declared that the world “cannot simply look the other way”. China responded by placing retaliatory sanctions on a selection of British officials – including five Conservative MPs – whom Boris Johnson described, in a tweet condemning the sanctions, as “performing a vital role shining a light on the gross human rights violations being perpetrated against Uyghur Muslims”. 

Within the space of a few days, the government seemed both to undermine the importance of human rights, expressing disinterest in adhering to ECHR standards, and then staunchly defend them, following a tide of other European and western leaders to speak out against the genocide of the Uighur people. The Conservatives’ relationship with human rights seems more difficult to unpick and understand than ever.

In a British context, human rights have emerged in the years since World War Two as a European project. Though first drawn up by the United Nations into the Universal Declaration of Human Rights (UNDHR) in 1948, the Council of Europe was assembled in 1949 to draw up a comparable European framework. Created by the Treaty of London and eventually centred in Strasbourg, the Council initially brought ten European states together to work for democracy, human rights and the rule of law. It was separate from the European Coal and Steel Community (founded in 1951) that would later morph into the European Union, and has continued to maintain its own distinct agenda and membership up to the present. 

The principles of the UNDHR agreed in 1948 were translated into a European context with the drafting of the ECHR the following year. The prohibition of torture, the right to liberty and freedom of expression were all included in the new charter. But these were not merely words; these human rights would be enforceable by the European Court of Human Rights. Established in Strasbourg, 1959, Article 19 of the Convention charged the court with ensuring “the observance of the engagements” undertaken by signatories of the ECHR. This distinct legal mechanism has continued to function in ensuring that signatories “secure to everyone within their jurisdiction, the rights and freedoms” set out in the Convention, though the 1998 Human Rights Act made it possible to bring a case involving the ECHR to a UK court, rather than Strasbourg. 

Even whilst it is separate from the EU, the ECHR and the European Court of Human Rights have both fallen victim to the rising tide of anti-European sentiment that culminated in the UK’s vote to leave the EU in 2016 and its eventual exit in January 2020. The ECHR and the very concept of Human Rights have become casualties of Brexit. It was David Cameron who first floated the idea of scrapping the ECHR and replacing it with a ‘British Bill of Rights’ back in 2015 in the same manifesto that contained his pledge to hold a referendum on the UK’s membership of the EU by 2017.

Whilst a ‘British Bill of Rights’ may bolster the importance of human rights within domestic politics, Cameron’s proposals represented an attempt to tap into the Eurosceptic sentiments swelling amongst many in his party and the population. Though a supporter of EU membership and the leader of the ‘Remain’ campaign, perhaps Cameron believed that a symbolic liberation from a different European legal structure would be enough to subdue the angry shouts for Britain to “take back control” by leaving the EU. In any case, ECHR and EU were merged in the creation of a powerful European adversary whom Europhobes could rail against in the bitter and hateful debates leading up to and following the 2016 Referendum.

On the 800th anniversary of the Magna Carta in 2015, Cameron vowed to “restore the reputation” of human rights in Britain, as “the place where those ideas were first set out”. Celebrations in Runnymede Surrey, the location of the signing of the iconic English document in 1215, became a platform for Cameron to articulate his desire to repeal the 1998 Human Rights Act and introduce British-specific legislation. The occasion and the terribly distorted legacy of the Magna Carta that Cameron appealed to helped underline the British Bill of Rights as a nationalist project that would protect and reassert a mythical British (or English) legacy of liberty.

Cameron went on to tell The Sun that the Strasbourg court had given human rights a “bad name” and that he would fix the “complete mess” of human rights laws. Comments like this have served to divorce the UK from the ECHR, the very framework it helped to create and of which it was was at the forefront. Attacks on the ECHR were a crude way for the Cameron-led Remain campaign to score points: a measured form of anti-Europeanism, attacking various non-EU European institutions as a sign of their nationalist commitment, to help minimise and divert hatred from the EU to other European ventures. 

Yet, even as the ‘Remain’ campaign failed and the UK voted to leave the EU, the nationalist, anti-European narrative around the ECHR that the Cameron government had carefully cultivated and fed into would go on to take on a life of its own. Anti-European sentiment has not abated since the 2016 vote to leave the EU. The difficulties that successive governments have had over the past five years in extracting the UK from the EU has meant that Euroscepticism has become a powerful force in politics. Cameron exposed the vulnerability of the Human Rights Act and the ECHR in British politics, priming the topic of human rights to be seized on and weaponised by others.

Boris Johnson’s government has leapt on this opportunity, since winning a sizable majority in 2019, by ordering a review of the Human Rights Act and its use in UK courts in December 2020. Director of Amnesty International UK, Kate Allen, expressed fear at the review, arguing: “Tearing up the Human Rights Act would be a giant leap backwards. It would be the single biggest reduction in rights in the history of the UK”.  

In both standing against human rights perpetrated by China and dismissing ECHR standards, the government has put out a highly confusing message on human rights. However, the key variant in their attitude does seem to be the involvement and presence of Europe. Raab’s comments that the UK will not be bound by the standards of human rights set out in the ECHR in a post-Brexit era, seem to be a continuation of the nationalist rhetoric constructed around the EU that has since infused discussion over the ECHR and human rights. However, in coming out against China, the UK seems to be indicating that it still foresees a commitment to human rights in its future; albeit a commitment on its own terms and to a concept that it defines. The proposal of the creation of a ‘British Bill of Rights’, its contents dictated by the government, has once again arisen.

Recent events have shown us the folly of letting the government, and government alone, define the concept of human rights. The Police Crime Sentencing and Courts Bill show this anti-ECHR anti-human rights agenda in action. The bill would criminalise protests that create “disorder” and “serious disruption”, as well as placing severe limitations on the ‘noise levels’ and locations at which demonstrations can be held. Despite the Conservative’s assertions to the contrary, it is in direct violation of Articles 10, protecting freedom of expression, and 11, the right to freedom of association, of the 1998 Human Rights Act.

Grace Bradley, the director of civil liberties group, Liberty, warned: “parts of this Bill will facilitate discrimination and undermine protest, which is the lifeblood of a healthy democracy”. Bradley went on to add that the Bill risks “stifling dissent and making it harder for us to hold the powerful to account”. If the Conservative government, with a sizable parliamentary majority, was given free rein to determine what classified as human rights and what would make up a ‘British Bill of Rights’, it is not hard to believe that similar attacks on our existing rights and freedoms would be made.

Other issues on which the UK government has previously clashed with the European Court of Human Rights would likely be ironed out in any potential ‘British Bill of Rights’. Brexit-style attempts to “take back control” of human rights can be observed in the response to the issue of prisoner rights, an area where the UK takes a fundamentally different view to its European counterparts. The issue flared up in the 2005 European Court of Human Rights case, Hirst vs. United Kingdom, in which the UK was found to have violated the ECHR in denying convicted prisoners, serving a custodial sentence, the right to vote.

The ruling and suggestion that the UK should re-examine the state of prisoner rights was met with fierce resistance with many sections of parliament, marking the beginning of a lengthy and drawn-out confrontation with the European Court of Human Rights and Council of Europe. Significantly, the debate around the ruling largely ranged beyond the actual question at hand: whether prisoners should be enfranchised, and widened to represent, and instead became a question of sovereignty and where power lay.

A motion, passed by parliament in 2011, argued that the UK should flout the court’s judgment on the issue of prisoner enfranchisement. The text of the motion highlighted that such legislative decisions “should be a matter for democratically-elected law makers”, in keeping with the concept of parliamentary sovereignty that dictates parliament should be all-powerful and should not be subordinated to any other body. 

Dominic Raab, then serving as a backbench MP and one of the proposers of the motion, urged for the UK to send a “very clear message back” to the court, that parliament and only parliament would “decide whether prisoners get the right to vote”. Though he assured his parliamentary colleagues that the UK would not be “kicked out of the Council of Europe” for passing a dissenting motion, Raab was clearly employing the rhetoric of taking back control and bolstering parliamentary sovereignty that was synonymous with the debates around the EU referendum. His remarks that “this House will decide… and this House makes the laws of the land” (despite the fact that the UK parliament had used its sovereignty to ratify the Convention in 1951 and to pass the 1998 Human Rights Act) could be applied to numerous conversations held around the UK’s membership of the EU. From fishing to free trade, the sentiment of Parliament and parliament alone being able to “decide” and make “the laws of the land” ring true with much of what was and has been discussed.

Though the idea of a ‘British Bill of Rights’ was never fully fleshed out in the discourse around the 2015 election and 2016 referendum, the very concept of the UK being able to independently define what was and was not acceptable seems to have been, in itself, alluring. Even the epithet ‘British’ marks the Bill, and the rights protected in it out, as a nationalistic attempt at the ‘British exceptionalism’ that often placed the country at odds with the EU. Such a Bill would ‘return’ full symbolic sovereignty to parliament (some have questioned whether it was ever really lost, given that the UK incorporated the ECHR into law in 1998) and clauses that the UK has historically taken issue with would be modified, for example Article 3 of Protocol 1 of the ECHR, requiring “free elections” and “free expression of the freedom of the people” would be qualified. Scrapping the ECHR and starting afresh with a ‘British Bill of Rights’ would embolden the government with both symbolic and literal power.

The strength of the ECHR and the Council of Europe is rooted in the institution’s history and framework. After centuries of European warfare and the devastation of World War Two, which saw some of the worst human rights abuses in modern history, European nations came together in an attempt to forge a better future. In creating an alliance such as the Council of Europe, this better future was staked on continued cooperation between nation-states, binding them into a common organisation to combat the divisive and hateful forces that had led to war and suffering.

And though issue has been taken with the European Court of Human Rights impinging on parliament, the very effectiveness of the ECHR lies in having an institution in place to enforce the high ideas and eloquent words that made up the Convention. The creation of the Court was a continuation of the post-war desire for mutual cooperation and bonds, ensuring that protection of these liberties was a constant. 

In his ‘Message to Europeans’ drawn up at The Hague in May 1948, Swiss politician, Denis de Rougemont appealed to a brighter shared European future. “Europe is threatened, Europe is divided and the greatest danger comes from her divisions”. He went on to articulate the desire for “a Charter of Human Rights…(and) a Court of Justice with adequate sanctions for the implementation of this Charter” in order to create a “united Europe”. If the UK were to create a ‘British Bill of Rights’ and withdraw from the ECHR, the Europe that de Rougemont appealed to, united by a respect for fundamental human rights, would be lost.

Image Credits: Creative Commons – “Dominic Raab attends a remote G7 meeting during Covid-19” by UK Prime Minister is licensed under CC BY-NC-ND 2.0

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