|Lord Bingham of Cornhill|
In the immediate aftermath of the war, the United Nations (U.N) was created. The Charter of the United Nations 1945 determines that nations shall reaffirm their faith in fundamental rights. On 10th December 1948, the Universal Declaration of Human Rights came into being. Even now, almost 70 years after the end of World War 2, the ideals of the Declaration remain very far from being achieved across enormous areas of the world.
Within Europe, there was a distinct move to adopt a European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It was adopted in 1950, ratified by the United Kingdom in 1951 and entered into force on 3rd September 1953. The Convention, in common with all international treaties, binds the U.K. so far as international law is concerned. It binds the government of the U.K. (and other "High Contracting Parties") to meet the standards set by the convention - (Article 1). It was not until 1966 that the U.K. government permitted British citizens to petition and it was not until the Human Rights Act 1998 that the Convention effectively became part and parcel of our law.
The Convention comes within the aegis of the Council of Europe - an organisation of 47 member States with a total population of some 850 million people. The Council was formed in 1949 by, at the time, 10 States including the UK.
We should be proud of the Convention and the fundamental fact that it was in our country that many of the rights were forged by the struggles of previous generations. Our history shows that rights were never handed down by beneficent politicians and there are those who would take our country out of the European Convention - for example, see Tory Diary - Theresa May's speech. The reason for seeking to withdraw from the convention can only be that, from time-to-time, the convention does precisely what it was designed to do. It stands in the way of unconstrained executive power. Judicial review - developed by the common law - is capable of a similar effect. Little wonder then that it too is under political attack. Further attacks are taking place on access to justice as government uses economic deficit arguments to justify removal of legal aid from numerous legal areas of vital importance to individuals.
No one could do better than the late Lord Bingham in defence of the Convention in his speech at Liberty's 75th Anniversary in 2009 - (also see Liberty's website). In that speech, Lord Bingham made ten points which I have summarised briefly below. As ever, his speech should be read in full. He concluded by saying:
Eleanor Roosevelt was a leader in the post war human rights movement. She noted:
"Where, after all, do universal human rights begin? In small places, close to home - so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justices, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world."
1. The Convention is NOT un-British - it was thought to reflect values which we took for granted and which had, we thought, been vindicated by our military triumph.
2. The Convention is a solemn obligation (binding our country in international law) to secure to everyone within the UK the rights and freedoms set out in the Convention. Repealing the Human Rights Act 1998 would not remove that obligation.
3. The Human Rights Act 1998 enabled rights and freedoms in the convention to be enforced in our own courts.
4. The Human Rights Act 1998 is not a massive transfer of power from politicians to judges.
5. The Human Rights Act is not undemocratic. The sovereignty of Parliament is actually preserved. Judges may not overrule Acts of Parliament though Parliament has allowed judges to say that an Act is incompatible with the Convention. It is then up to Parliament whether to alter the law.
6. The rights of the individual are not elevated above those of the community. Although some rights are absolute (e.g. right to life), the Convention usually seeks to balance the rights of the individual and the wider rights of the community.
7. Critics say - but what about responsibilities? Bingham answered this by saying (a) the convention is there to protect some rights which were inadequately protected before and (b) duties and responsibilities are already adequately prescribed.
8. The European Convention provides a floor for rights and not a ceiling. There is nothing to prevent States offering greater protection.
9. Critics also say that the Convention brings out much foolish decision-making. Bingham did not agree with every judicial decision but he considered that the standard of decision-making was, on the whole, rather high and challenged the critics to bring out their examples of what they consider to be poor.
10. Finally, Bingham argued that the convention protects those basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being.
The Guardian 3rd September - Stop playing politics with human rights
British Institute of Human Rights - 60 years of human rights protection is worth celebrating
British Institute of Human Rights 3rd September - We miust stop tarnishing our human rights legacy says former President of the European Court of Human Rights
British Institute of Human Rights - article by Paul Langton (winner of the BIHR ECHR competition) - Why I'm celebrating the other Jubilee: 60 years of the European Convention on Human Rights
Council of Europe - Court celebrates 60th Anniversary of entry into force of the European Convention on Human Rights
ECHR Blog - European Convention 60 years in force today
European Court of Human Rights - Factsheets
UK Human Rights blog 9th November 2010 - How the most English of poems inspired a Scot to champion European Human Rights
UK Human Rights blog 3rd September 2013 - We would be mad to leave our European Convention on Human Rights
Telegraph 3rd September - Six decades of human rights support