The European Convention of Human Rights (ECHR) is an international human rights protocol to which Britain is a signatory. Indeed, Britain was a founding member of the ECHR in 1949. In 1959, the European Court of Human Rights (ECtHR) was founded to adjudicate on potential breaches of the ECHR. This court has jurisdiction for enforcing the human rights standards of human rights across the member states. Increasingly in Britain, discussion about leaving the European Convention of Human Rights has emerged with the idea of replacing it with a ‘British Bill of Rights’. So, why has this become a prominent debate in British Politics and what would its significance be?

What is the difference between the ECtHR and the ECJ?

The European Court of Human Rights (ECtHR) is often confused with the European Court of Justice (ECJ). They are two very distinct bodies. The ECtHR is a body based in Strasbourg and operated under the umbrella of the Council of Europe, an organisation of 46 member states (all except Belarus and Russia). It is a human rights court and deals with issues of human rights within its member states. Conversely, the ECJ is the judicial arm of the European Union. It is responsible for ensuring that all 27 EU states comply with EU law.

Therefore, whilst the ECtHR is a European court, it is not a European Union court. The only way to the courts are linked is that acceptance of the ECHR is an indirect requirement of membership of the EU. A state that did not accept the ECHR is unlikely to be invited to join the EU due to not meeting the criteria of being a liberal democracy.

How were these issues confused during the EU Referendum (2016)?

During the EU Referendum it often felt like the ECHR was treated as an EU institution. During the EU Referendum the Leave nebulously referred to ‘European Courts’ having control over Britain and referred to issues like the failure of Britain to deport Abu Qatada due to a ‘European court’. This led to the belief, by many, that the ECJ and ECHR were synonymous. A number of MPs have either vacuously, or deliberately, misled the public over this issue. For example, in a letter of the 17th May 2023 Conservative MP Andrea Jenkyns said that “my constituents, alongside many millions in our Nation, voted to end the jurisdiction of this foreign court, which has sought to delay our deportation of illegal immigrants to Rwanda, under Rule 39”. She was implying that the 2016 vote for Brexit was a vote on Britain’s membership of the ECHR, when it was not.

How does the ECHR work?

The European Convention on Human Rights was drafted in 1950 and came into force in 1953. It codifies a number of human rights within the convention document. There are 18 articles that pertain to different rights. These include:

Article 2 – The right to life

Article 3 – Prohibition of torture

Article 6 – Right to a fair trial

Article 8 – Right to respect for private and family life

The European Court of Human Rights was established in 1959 and is based in Strasbourg, France. It has jurisdiction for adjudicating on any application by a citizen that a signatory state has not complied with the convention and has infringed their rights. The court also deals with disputes between states relating to human rights. For example, in 1978 the court heard Ireland v United Kingdom which was related to allegations of inhumane treatment of terror suspects by the United Kingdom during the Troubles in Northern Ireland. The court ruled that Britain had breached Article 3 of the ECHR.

There are 46 judges, one from each state that has ratified the ECHR.

How have Britain interacted with the ECtHR?

Since its foundation, the ECtHR have handled a number of cases involving Britain. Some of the most significant cases include:

Dudgeon v United Kingdom (1981): This ECtHR case found that Northern Ireland’s criminalisation of homosexual acts was a violation of the Article 8 rights of its citizens. The law was changed in Northern Ireland in 1982.

Hirst v United Kingdom (2005): In this case the ECtHr made a judgement that Britain’s blanket ban on allowing prisoners to vote was a breach of Article 3 of the ECHR.

A and Others v United Kingdom (2009): This case determined that the UK government’s policy of indefinite detention of foreign-national terror suspects was a violation of their Article 5 rights.

Most recently, the ECtHR have had an impact on Britain’s plans to deport asylum seekers to Rwanda where their claims can be assessed. The first scheduled flight to Rwanda was due in June 2022. However, the flight was cancelled after legal challenges in the European Court of Human Rights. This then led to a legal battle in the UK in which the Supreme Court judge on 15th November 2023 that the Rwanda Policy was unlawful.

Subsequent to the ECtHR and UK Supreme Court judgements, the UK government have sought to pass the Safety of Rwanda Bill. This bill does a number of things. However, one of them is to disapply the Human Rights Act (1998) and the ECHR provisions from the proposed Act:

What is the relationship between the ECHR and the Human Rights Act (1998)?

The Human Rights Act was passed by New Labour in 1998. One of the key provisions was to incorporate the provisions of the ECHR into UK law. One of the key reasons for this was to stop British citizens having to go to an international court in Strasbourg in order to see their rights protected. In addition, the Human Rights Act makes it unlawful for any public body to act in a way that is not compatible with the ECHR, unless Parliament explicitly authorises otherwise. Notably, the Safety of Rwanda Bill is a good example of this:

Why have some politicians sought to leave the ECHR and pass a British Bill of Rights?

Increasingly, politicians on the right in the UK have called for Britain to leave the ECHR. There are a numbers of reasons for this:

1. Concerns over sovereignty: A common argument made is that membership of the ECHR infringes upon British sovereignty. The ability of the ECtHR to override decisions made in a British court is seen as a challenge to the notion of parliamentary sovereignty.
2. Perceived interference in domestic policy: Critics of the ECHR also point to the active examples where the ECtHR have actively prevented the British government from carrying out an action that is the expressed will of Parliament. The injunction of flights of asylum seekers to Rwanda is a good example of this.
3. Concern over growing scope of the ECHR: Many critics argue that the ECHR has expanded beyond its initial remit and is too ‘judicially active’ and has a tendency to push a socio-political agenda.
4. The preferment of a ‘British Bill of Rights’: Many of the critics of the ECHR advocate for a UK-specific Bill of Rights.

Why do some people argue for a ‘British Bill of Rights’?

Many of the proponents of leaving the ECHR believe that Britain would be better served with a ‘British Bill of Rights’. Recent Conservative manifestos have referred this idea:

2010 – ‘We will replace the Human Rights Act with a UK Bill of Rights’

2015 – ‘ The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.’

Notably, Britain has a piece of legislation called the Bill of Rights (1689). However, this piece of legislation that followed the ‘glorious revolution’ deals with the political rights of Parliament, rather than human rights as they are understood in the 21st century.

One of the main reasons that people might argue for a British Bill of Rights is because:

National Sovereignty: A repeal of Britain’s membership of the ECHR and the Human Rights Act (1998) would arguably return sovereignty over legal matters to the UK. A UK Bill of Rights could be made to be culturally British and had responsibilities to the rights outlined.

Legal Clarity: It is argued that a British Bill of Rights would provide clearer guidance to courts, particularly on how rights should be balanced against responsibilities. The UK courts would not longer have to rely on ‘foreign’ interpretations of Human Rights coming from the ECtHR.

Public Confidence: There is a belief that the public do not have confidence in the current system and are suspicious of decisions made by international courts. A new system would arguably address these concerns.

Updating Protections: The current system is based on a set of Human Rights provisions that were set in 1950. There is an argument that these standards are not in line with modern society and a new British Bill of Rights could bring this up-to-date, including issues such as digital rights that have developed since 1950.

Why might the proposal be opposed?

There are a number of reasons why the notion of abandoning the ECHR and creating a British Bill of Rights might be opposed:

The nature of Human Rights: The very nature of Human Rights is that they are both universal and inalienable. Creating a separate category of Human Rights for British citizens undermines a fundamental principle that Britain itself relies on when encouraging states, like China, to respect the rights of their citizens.

Loss of Protection for Rights: The ECHR and Human Rights Act (1998) create fundamental rights based on the UN Declaration of Human Rights (1948). Things such as the Right to a Fair Trial and Freedom of Expression are paramount within a liberal democracy. The current system clearly provides mechanisms for citizens to challenge government when they feel their rights are infringed.

Loss of international reputation: Britain has an international reputation as being a guardian of human rights. As a founding member of the ECHR, it has a long history of commitment to human rights. Leaving the ECHR could signal to the international community a weakening of Britain’s commitment to Human Rights both at home and abroad. Consequently, it could leave to a negative impact on diplomatic relationships and Britain’s soft power.

Effects on devolution: Human Rights underpin parts of the devolution settlement. In particular, human rights provisions underpin the Good Friday Agreement. Repealing this legislation could harm Britain’s wider constitutional settlement.

Potential impact on vulnerable groups: Human Rights are most precious for the most vulnerable and marginalised groups in society. The inalienable nature of human rights means that they are afforded as much protection as anyone else. Withdrawing from the ECHR and repealing the Human Rights Act could lead to erosion of rights for those groups.

Public Opinion is not in favour – Public opinion is seemingly against withdrawing from the ECHR:

Should there be a referendum on the ECHR?

There has been increasing discussion about using a referendum as a mechanism to decide whether Britain should withdraw from the ECHR. Many within the Conservative Party have urged the Prime Minister to make a referendum on the ECHR a manifesto commitment of the next election. It has been suggested that some Conservatives have urged a ‘Super Thursday’ with a general election held the same day as a referendum on membership of the ECHR. A referendum may be a tempting option, but like the Brexit referendum, there is a distinct danger that it would become a emotive referendum and fall foul of populist instincts.

Article Summary

Britain has been a signatory of the ECHR since 1950 and in 1998 the Human Rights Act was passed to codify the provisions of the ECHR into British law. Some in Britain have been increasingly frustrated by the ability of the ECtHR to force the British government into actions they might otherwise not have taken. The Rwanda Policy has British continuance in the ECHR into sharp focus and there is now a public debate about Britain’s membership on it.

Key Terms

European Convention of Human Rights (ECHR) – An international treaty to protect and enforce fundamental Human Rights in Europe. It was signed in 1950. In 1998 it was codified into UK Law in the Human Rights Act.

European Court of Human Rights (ECtHR) – The court in Strasbourg that exists to ensure member states are complying with the ECHR.

British Bill of Rights – The concept of creating an Act of Parliament that explicitly places human rights in a British context and does not rely on wider international provisions.

Safety of Rwanda Bill – A bill that seeks to workaround the UK Supreme Court’s judgement that the Rwanda Policy is unlawfully by explicitly stating in British law that Rwanda is a ‘safe country’.

European Court of Justice – The judicial arm of the European Union. This is not a human rights court and should not be confused with the European Court of Human Rights

Soft Power – The ability to a state to influence others by persuasion rather than source. Cultural influence is an important part of soft power.

Specification Links:

Edexcel: Paper 2 – 4.1 (Relations Between Branches)
AQA: Paper 1 – 3.1.1.4 (The judiciary)
WJEC: Paper 2 – 2.1.3 (The protection of human rights)