The History of the European Convention on Human Rights (OCR A-Level Law): Revision Notes
The History of the European Convention on Human Rights
Background and origins of the European Convention on Human Rights
The European Convention on Human Rights (ECHR) was created in response to the devastating human rights violations committed during the Second World War, particularly the atrocities perpetrated by Nazi Germany. The Convention was designed to prevent such horrors from happening again in Europe and represented a significant milestone in establishing peace and promoting European cooperation.
Winston Churchill was a key advocate for the Convention, which was drafted in 1950 by the newly established Council of Europe. The Convention officially came into force in 1953, marking a new era for the protection of fundamental rights across Europe.
The creation of the ECHR was part of a broader post-war movement to establish international mechanisms for protecting human rights. It built upon the principles set out in the Universal Declaration of Human Rights (1948) but created a legally binding framework specifically for Europe.
The Convention established its own judicial body, the European Court of Human Rights (ECtHR), which is based in Strasbourg, France. This court was created to hear complaints about alleged violations of the rights protected under the Convention.
The UK's relationship with the Convention before 1998
The United Kingdom was an original signatory to the ECHR in 1953. However, despite signing the Convention, the UK did not incorporate its provisions into domestic law for nearly 50 years. This meant that while UK courts recognised the Convention, they were not legally bound by it – the Convention merely had persuasive authority.
The Practical Impact of Non-Incorporation
Before the Human Rights Act 1998, the Convention's lack of incorporation into UK law created a significant barrier to justice for ordinary citizens. While the UK was bound by the Convention at the international level, individuals could not directly enforce their Convention rights in UK courts.
This created significant practical difficulties for UK citizens seeking to enforce their human rights:
- Citizens had to exhaust all domestic legal remedies before they could bring a claim under the Convention
- This process was both complicated and expensive
- Access to Convention rights required taking a case all the way to the European Court of Human Rights in Strasbourg
- Many people could not afford this lengthy and costly process
The situation changed with the passage of the Human Rights Act 1998, which aimed to enshrine (incorporate) the Convention into domestic UK law, though with certain restrictions. The Act came into force in 2000.
Rights and freedoms protected under the Convention
The original Convention was structured using Articles, which are similar to sections in an Act of Parliament. Each Article guarantees specific rights and freedoms. The five main Articles required for study are:
Article 5 – The right to liberty and security of person
This protects individuals from arbitrary arrest and detention. It requires that any deprivation of liberty must be lawful and follow proper procedures.
Article 6 – The right to a fair trial
This guarantees everyone the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. It includes the presumption of innocence in criminal cases.
Article 8 – The right to respect for private and family life
This protects individuals' privacy, family life, home and correspondence from unjustified interference by the state.
Article 10 – The right to freedom of expression
Freedom of expression means being free to express ideas, views and opinions and share them with others without the state interfering. This right includes freedom to hold opinions and to receive and impart information.
Article 11 – The right to freedom of peaceful assembly and association
This protects the right to meet with others and form or join groups, including trade unions and political parties.
Critical Difference in Numbering Systems
The section numbers in the Human Rights Act 1998 do not correspond to the Article numbers in the European Convention – these are two separate documents with different numbering systems. Always ensure you are referring to the correct document when citing specific provisions.
Purpose of the Human Rights Act 1998
The Government introduced the Human Rights Act 1998 to streamline access to basic human rights and freedoms. The legislation aimed to bring rights protection closer to home and reduce the burden on citizens seeking to enforce their fundamental rights.
The key objectives were:
- To allow citizens to enforce Convention rights directly in UK courts as a first line of protection
- To avoid the need to exhaust domestic remedies before accessing the European Court
- To make human rights protection more accessible and affordable
Understanding Qualified Rights
Many of the rights under the Convention are qualified rights, meaning they allow for restrictions to be imposed. Unlike absolute rights (which can never be interfered with), qualified rights must be balanced against other important societal interests.
These restrictions are generally justified on grounds of:
- National security
- Public safety
- Prevention of disorder or crime
- Protection of health or morals
- Protection of the rights and freedoms of others
Controversy surrounding the Human Rights Act 1998
The introduction of the Act proved highly controversial and continues to generate debate in political and public discourse.
The "Burglar's Charter" Criticism
Critics dubbed the Act a 'burglar's charter', arguing that it:
- Overprotected criminals at the expense of victims of crime
- Made it harder to deport foreign criminals
- Allowed prisoners to claim compensation for minor infractions
- Gave too much power to unelected judges to override Parliament
These concerns continue to fuel debate about whether the Act should be repealed or reformed. Supporters counter that the Act provides essential protections for all citizens and that concerns about abuse are often exaggerated or misrepresented in the media.
Key case: Thompson and Venables v United Kingdom (1999)
Worked Example: Thompson and Venables v United Kingdom (1999)
Facts:
Thompson and Venables were convicted of the murder of toddler Jamie Bulger. Following their trial, they brought a claim to the European Court of Human Rights alleging that there had been a breach of Article 6 ECHR (the right to a fair trial). Their argument focused on the intense media frenzy that surrounded the case.
Legal principle:
The right to a fair trial can be undermined if media attention and public pressure create an atmosphere that prevents a defendant from receiving a fair hearing.
Outcome:
The European Court of Human Rights found in favour of Thompson and Venables. Their lawyers successfully argued that the trial proceedings and the surrounding media attention undermined the possibility of a fair trial. While no compensation was awarded, their legal costs were ordered to be paid.
Significance:
This case demonstrates how the Convention rights could be enforced through the European Court even before the Human Rights Act 1998 came into force in the UK, though the process was lengthy and costly. It also illustrates the practical difficulties faced by UK citizens in enforcing their rights prior to incorporation.
The European Court of Human Rights
The European Court of Human Rights (ECtHR) is an international court established to interpret and enforce the European Convention on Human Rights. It serves as the final arbiter of disputes concerning Convention rights and has jurisdiction over all member states of the Council of Europe.
Its key features include:
- Established: 1959
- Location: Strasbourg, France
- Jurisdiction: Rules on applications from individuals or states alleging violations of Convention rights
- Membership: Judges are elected from member states of the Council of Europe
Key dates in the history of the ECtHR
5 May 1949 – Creation of the Council of Europe
4 November 1950 – Adoption of the European Convention on Human Rights
3 September 1953 – The Convention enters into force
21 January 1959 – First judges of the European Court elected by the Consultative Assembly of the Council of Europe
23–28 February 1959 – The Court holds its first session
18 September 1959 – The Court adopts its Rules of Court (procedural rules)
14 November 1960 – The Court delivers its first judgment in Lawless v Ireland
1 November 1998 – Protocol No. 11 comes into force, making the Court a full-time permanent court (previously it sat part-time)
18 September 2008 – The Court issues its 10,000th judgment
The implementation of the Human Rights Act 1998
The Human Rights Act 1998 was the UK's first piece of legislation dedicated solely to enforcing basic human rights for its citizens. This represented a significant constitutional development in how human rights are protected within the UK legal system.
The timeline was:
- 1998 – Act passed by Parliament
- 2000 – Act came into force and became operational
The Act was designed to incorporate the majority of the Articles of the European Convention on Human Rights into domestic UK law. This meant that UK citizens could now:
- Bring human rights claims directly in UK courts
- Rely on Convention rights without going to Strasbourg
- Access faster and cheaper remedies for human rights violations
Constitutional Significance
The Act represents a significant constitutional development, giving UK judges the power to interpret legislation in light of Convention rights and to declare Acts of Parliament incompatible with the Convention (though not to strike them down). This maintains the principle of parliamentary sovereignty while strengthening human rights protection.
Remember!
Key Points to Remember:
- The European Convention on Human Rights was drafted in 1950 and came into force in 1953 in response to Nazi atrocities during the Second World War
- The UK signed the Convention in 1953 but did not incorporate it into domestic law until the Human Rights Act 1998 came into force in 2000
- The five key Articles are: Article 5 (liberty), Article 6 (fair trial), Article 8 (privacy), Article 10 (expression), and Article 11 (assembly)
- The European Court of Human Rights (based in Strasbourg) was established in 1959 to enforce Convention rights
- Before 2000, UK citizens had to exhaust domestic remedies before accessing the European Court – a complicated and expensive process
- The Human Rights Act 1998 aimed to make human rights more accessible by allowing citizens to enforce Convention rights directly in UK courts
- Many Convention rights are qualified and can be restricted on grounds such as national security or public safety