Over the period of Brexit and the Election campaigning, the ECHR and the Human Rights act have been thrown around a lot by people. Often this is used in the completely wrong context.
Let me try and debunk a few of the common ones I have heard
Statement: Now Brexit is happening we can deport Terrorists
Answer: Nothing stopped us from deporting them before
Statement: We are leaving the ECHR
Answer: We aren’t. The European Court of Human Rights is part of the European Council. This is nothing to do with the EU or EU courts.
Statement:The ECHR is another example of Europeans/Germany trying to control us
Answer: Actually the Council of Europe was founded by Churchill, and the act was penned by British Lawyers. It was a was of bringing Europe together after WW2 under British values to protect the individual from Dictators such as Hitler & Mussolini.
further facts can be found in this useful myth buster. Liberty
So if you happen to have read this far I will give you a brief overview of what the Council of Europe is, and how the Convention on Human Rights and the Court fits into this, as well as how these also apply to the 1998 Human Rights Act.
What is the Council of Europe?
The Council of Europe was established in the year 1949. This was the dream of Winston Churchill following his speech in Zurich for creating a ‘United States of Europe’
The purpose was to push for the observance of human rights and democracy, and create a strong set of values to apply to mainland Europe following WW2 to ensure that the likes of Hitler and Mussolini were never able to rise again.
What is the European Convention of Human Rights?
The Convention is the article on how the Council aims to uphold Human Rights. The article was penned primarily by British MP and lawyer Sir David Maxwell-Fyfe. The article although primarily setting forth the inexorable rights of a person, was also about fostering strong democracy, it felt that the two were interconnected, and that this was an effective way to curb the spread of Communism within Europe.
It was believed that strong democracy, along with hard won rights to protect the individual would create an environment where both states and their citizens would support each other, and not create the space for revolution.
What is the European Court of Human Rights?
The court is the body which upholds the values set out in the convention, and arbitrates disputes. While the judgements are binding, they cannot impose a change law within signatory states, however it will offer advice in the drafting of new laws to bring a country into compliance.
Untill the UK drafted their own bill and brought this into effect in 1998 all cases relating to the ECHR went straight to this court. This leads us onto our next point.
What is the 1998 Human Rights Act?
This came into effect in 2000, and is essentially a version of the Convention brought into British Law. Up until this point as there was not act in the UK cases went straight to the ECHR. This act allowed the UK Courts to rule on Human rights issues. This means that there was less scope for cases to end up at the ECHR as they would only pick up cases where they believed that the UK courts had applied incorrectly, or where the UK courts refed the case upwards to them.
What has this done for us then?
There are two notable cases which have been throughthe courts which benefit all of us
- A ruling that declared that Fingerprints and DNA could not be held for people who hadn’t committed any crimes.
- Ruling that a number of Homosexual soldiers who were dismissed due to their sexuality had their rights impinged. This lead to change in army selection and created greater diversity within the UK Armed forces.
So there is a lot to take in, but if there is one thing to take away from this, it is that the Council of Europe is fundamentally a British institution, with a convention based on British Values. It was a way for Britain to cement its values on Europe and to that effect has done so remarkably well.