Leducate Explains: European Convention on Human Rights
Hint - key terms are defined. Just click on the blue words to see their definitions!
You might have heard someone say something about human rights before, on the news, or when something unjust has happened or even just in passing. In this article Harry Piercy explains what it is all about and why it is important.
Introduction
This Article explains the European Convention on Human Rights (ECHR). It covers what the ECHR is, and its impact on human rights in the UK.
The European Convention on Human Rights (ECHR) is an international treaty designed to protect human rights across Europe. The treaty was agreed in 1953 by the member states of the Council of Europe.
The Council of Europe
The Council of Europe is an international organisation made up of individual European countries, or member states. It was formed after the end of WW2, with the aim of uniting Europe by promoting their key values of democracy, the rule of law and human rights. The Council of Europe has 47 member states including the UK. Importantly, the Council of Europe is different to the EU, which has only 27 member states and has its own separate legal system. For example, Russia is not a member of the EU but is a member of the Council of Europe. All members of the Council of Europe have agreed to abide by the ECHR and any new members are expected to agree to the ECHR as soon as possible.
The Articles
The ECHR requires the members of the Council of Europe to respect the fundamental human rights laid out in the Articles of the ECHR. For example, Article 2 protects the right to life. This requires that state agents, such as the police, can only use lethal force where it is absolutely necessary. It also places a duty on member states to protect people when there is a risk to their lives. Article 3 is the prohibition of torture. This means that member states are never allowed to torture anyone or subject anyone to inhuman and degrading treatment. Another important right is Article 8. Article 8 protects the right to a private and family life and can apply in a range of different circumstances. For instance, Article 8 has been used to prevent people from being dismissed from the Navy on the basis of their sexuality, and also to prevent some immigrants from being sent home from a country which they have close family members living in.
The human rights protected by the ECHR are often referred to as the Convention rights.
European Court of Human Rights
If an individual believes a member state has broken, or violated, any of their Convention rights they can bring a claim to the European Court of Human Rights (ECtHR). The ECtHR is an international human rights court, based in Strasbourg, France. The purpose of the Court is to hear claims and determine whether a member state has violated an individual’s Convention rights.
Importantly, because the ECHR is an international agreement between different member states, a claim can only be brought against a state itself and not an individual. You could bring a claim against the UK Government, the police, or the army, because these are all considered part of the UK state. However, you could not bring a case against your neighbour because they are just an individual. It is not necessary to be a citizen of the member state, or any member state, in order to bring a claim to the ECtHR. Additionally, member states can bring claims against other member states.
If the ECtHR decides that a member state has violated an individual’s Convention rights, the Court can order the member state to pay compensation to the individual, to fix the violation where possible, and to prevent a similar violation from happening again.
Human Rights Law in the UK: The Human Rights Act
In UK law, the ECHR is applied through the Human Rights Act 1998 (HRA). Section 6(1) of the HRA requires that all public authorities act compatibly with Convention rights. A public authority is anything that can be considered part of the state, like the government, police, or a local council. This means that if you believe the state has violated your Convention rights you can bring a claim in the UK courts rather than having to go to the ECtHR. In fact, in order to bring a case to the ECtHR, you have to first exhaust all domestic remedies. This means that you must first bring a case in the UK courts under the HRA, and if that is unsuccessful you can then bring the case to the ECtHR.
Section 2 of the HRA requires that UK courts must take into account any decisions of the ECtHR. However, UK courts do not necessarily have to follow the decisions made by the ECtHR. Just because the ECtHR have decided something is a violation of Convention rights, does not mean the UK Courts have to agree. However, in reality the UK Supreme Court, the most important court in the UK, usually follows the decisions of the ECtHR unless there is a good reason not to. If there are multiple ECtHR decisions which contradict each other, or the Supreme Court thinks the ECtHR have not properly understood part of UK law, the Supreme Court may decide not to follow an ECtHR decision, but this is rare.
The HRA 1998 also gives the UK courts other powers. Section 3 requires that UK courts have to interpret all written laws compatibly with convention rights. This means that even if a law seems to violate someone’s convention rights, the court is required to read it in a way so that it doesn’t violate their rights. If they cannot do this, section 4 allows the Supreme Court to make a declaration that a certain law is incompatible with the ECHR. Whilst the law itself remains valid and can still be enforced, this provides a strong incentive for Parliament or the Government to change the law - they do not want to be seen as creating laws which violate human rights.
Written by Harry Piercy
Glossary box
Member States – Individual countries which are members of an international organisation. E.g France, Germany and the UK are all member states of the Council of Europe.
Articles – Sections of an international treaty like the ECHR.
Inhuman and degrading treatment – Treatment which is extremely serious but does not meet the high threshold to count as torture. E.g threatening to torture someone, keeping prisoners in cramped and dirty cells, or physical violence.