The ECHR - What’s in a name?

By Christopher Gill RD

When opening a can of baked beans one can be almost certain that the contents will match the description on the label.

Not so when one delves into the pages of an international agreement known as the European Convention on Human Rights (ECHR).

To a generally unsuspecting British public it is virtually inconceivable that their ‘human rights’ aren’t comprehensively protected by the aforesaid ECHR – after all, ‘human rights’ is what it says on the front cover.

The provisions of the ECHR are widely regarded as the human rights gold standard but, upon examination, the facts of the matter tell a rather different story.

They demonstrate that the rights enshrined in the ECHR, transposed into British law by dint of the Human Rights Act 1998, are, in significant respects, inferior to those with which we British subjects are actually born.

For example, what might not unreasonably be described as our very birthright includes the all-important law of habeas corpus, once described by the late Archbishop Desmond Tutu as “such an incredible part of freedom”, which, since 1679, has protected us against all forms of coercion.

Far from being the panacea for all human rights ills, the ECHR suffers from some fundamental deficiencies, particularly as far as we British are concerned whose invaluable and indisputable contribution to the wider world’s human rights has its roots in Magna Carta, 1215.

Amongst the most egregious of the ECHR’s several deficiencies are that it specifically does not prevent false accusation, arbitrary arrest and potentially unlimited periods of detention without trial, as the litany of innocent British people served with an European Arrest Warrant (EAW) would surely attest.

A further matter for concern is the fact that presiding over the European Court of Human Rights (ECtHR) are judges drawn from each of the 46 countries in membership of the Council of Europe, some of which have human rights records that leave much to be desired.

The world has changed dramatically since, in the aftermath of the Second World War, the ECHR was conceived. Regrettably it is now being used for purposes for which it was neither designed nor intended.

The human rights abuses in the decade preceding Victory in Europe in 1945 were typified by the appalling concentration camps and the wholesale abuse of those whom the Fascist and Communist dictators arbitrarily condemned to imprisonment, slave labour, starvation and premature death.

Those of us old enough to have witnessed the millions of Displaced Persons criss-crossing Europe in the days following the cessation of armed conflict are left with an indelible memory of human rights abuses that by today’s standards are virtually unimaginable, but which at the time, for compelling reasons, Winston Churchill and others felt moved to try to prevent ever happening again.

Inevitably, because their good intentions had to accommodate two totally different systems of criminal justice - ours derived from Magna Carta and the continental jurisdictions, via the Napoleonic Code, derived from the Inquisition – compromises had to be made. It is those compromises that force the conclusion that substituting the United Nations Universal Declaration of Human Rights (UDHR) in lieu of the European Convention would now, post Brexit, be in Britain’s better interests.

For the record Article 9 of the UDHR unequivocally states that “No one shall be subjected to arbitrary arrest, detention or exile”.

Furthermore the UDHR would, contrast the ECHR, have the effect of making British judges, sitting in British courts, the final arbiters in British human rights cases – surely a most welcome repatriation of a significant aspect of national sovereignty !

- Christopher Gill, 10th January 2023