It is not perfect but we should celebrate the impact of the European Convention on Human Rights, writes Allan Massie
Sixty years ago yesterday the European Convention on Human Rights (ECHR) came into force, having been ratified by the ten member states of the Council of Europe: the United Kingdom, France, Denmark, Norway, the Netherlands, Belgium, Luxembourg, Italy, Ireland and Sweden.
Both the Council of Europe and the ECHR preceded the Treaty of Rome which brought the European Economic Community (EEC), precursor of the EU, into being, and both were therefore, and remain, quite distinct from it. One has to make this point, because many people believe that the ECHR and the European Court of Human Rights, which was established to enforce it, are instruments of the EU. In fact they are independent of it. They are connected only because the EU member states, and states applying for membership, are now required to adhere to the Convention.
The Council of Europe did represent the first steps towards some form of United Europe. It was inspired by Winston Churchill, who called for the creation of some such body – first in a wartime radio broadcast, and then in 1946 in a speech in Zurich – and was brought into being by the Treaty of London, signed in May 1949 by these ten original member states. The first meeting of this assembly was held in Strasbourg that August, and it continues to meet there. The number of member states is now 47.
Drawing up the Convention on Human Rights was one of the Council’s first tasks. This was a natural and admirable consequence of the utter disregard for any idea of such rights which had devastated Europe before, and during, the war. Britain, as the state which had led the defence of freedom against Nazi Germany (and Fascist Italy), took the lead, along with France. The two chief authors of the draft document were the Scotsman Sir David Maxwell Fyfe, who had been one of the chief prosecutors at the Nuremberg Trials of the Nazi leaders, and Pierre-Henri Teitgen, a leading figure in the French Resistance who, as minister of justice in De Gaulle’s 1944-6 government, had had responsibility for the trials of leaders of the Vichy government and of French men and women who had collaborated with the Germans during the years of occupation.
There were three chief influences that helped to form the Convention, besides the revulsion from the Nazi atrocities. First was the tradition of English common law: in theory at least, common law protects the individual from arbitrary action by the state. Second was the UN’s Universal Declaration of Human Rights, which looked forward to “the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want”. Third was the spirit of the French Resistance.
Essentially, the general principles of the ECHR are intended to safeguard the freedom of the individual citizen. The men who drew it up knew from experience that codes of law were not enough. Much that the Nazis did was legal, because they had passed laws making it so. Discrimination against Jews – barring them from certain professions and restricting their freedom of movement, for example – was legal in Nazi Germany and Vichy France, because laws had been passed imposing such restrictions on them. But, though legal, such state action was wrong and immoral. This is why a declaration of general and inalienable human rights was deemed necessary in the dark years after the war. It is why it was thought essential to establish a Court of Human Rights which could protect the individual citizen against the state, especially his own one. The authors of the Convention recognised that even democratic states may act unjustly, and so they created a court which could condemn such injustice and make provision for redress.
The Convention was neither a Utopian nor, in the contemporary sense of the word, a Libertarian document. Its authors were practical men. They recognised that a state must be able to exercise authority. So the general statements of particular human rights were all qualified and exceptions made. Forced labour, for instance, was declared to contravene human rights, but they recognised that there were circumstances in which it might be permissible. The Convention is a noble document, but it is neither an impractical nor airy-fairy one.
Though the UK ratified the Convention, it was not incorporated into our law until 1998. Before then, British citizens could bring actions to the Court of Human Rights, but this was an arduous, as well as expensive, process. Making the ECHR part of our law makes this easier, and also provides for preliminary applications to be made here before English or Scottish judges who can rule whether there has been an infraction of the Convention.
Many Tory MPs want the act incorporating the ECHR in our law to be repealed. This is surely undesirable, no matter how irritating the occasional case, such as the long delay in deporting the Muslim preacher Abu Qatada, may have been. The principle at stake there was an important one. The ECHR prohibits torture and the use of evidence obtained by torture. Until Jordan could offer satisfactory assurance that such evidence would not be used against him, it was right that he should not be deported. You shouldn’t twist the law merely because the accused is a bad man.
If the world, or Europe at least, is in so many respects a better and more civilised place than it was in the 1930s and 1940s, it is because we have endorsed the general principles of the European Convention on Human Rights, and for the most part put them into practice, or at least tried to do so. Like all institutions, the Court of Human Rights sometimes gets things wrong and makes objectionable judgements. But in general the ECHR is a force for good. It guards all of us as individuals against the excesses of those in power, and its 60th birthday deserves to be celebrated.