What is the European Convention on Human Rights?
The European Convention on Human Rights is an international treaty protecting rights and freedoms across member states of the Council of Europe, based in Strasbourg, France.
The ECHR was drafted in 1950 in the aftermath of the Holocaust and World War II and entered into force (i.e. started to have legal effect) in 1953.
The UK was the first state to ratify the Convention in 1951 and British lawyers and politicians were influential in drafting it.
What is the Council of Europe?
The Council of Europe is an international organisation of 46 states which was formed in 1949 to promote democracy, human rights and the rule of law.
All countries across Europe are members of the Council of Europe, and bound by the ECHR, except Belarus and Russia.
The Council of Europe is separate from the European Union. The UK’s departure from the EU after the Brexit referendum did not affect its membership of the Council of Europe or its commitment to the ECHR.
Which rights does the ECHR protect?
Inspired directly by the Universal Declaration of Human Rights adopted in 1948, the ECHR includes fundamental rights — the right to life, and the prohibition of torture, inhuman or degrading treatment, slavery, servitude and forced labour.
The Convention also protects rights that sustain a pluralistic democracy: the rights to freedom of expression, freedom of peaceful assembly, freedom of religion and belief, and free elections.
Due process rights are protected — the rights to liberty and security and to a fair trial.
The ECHR also protects rights related to personal autonomy, like the right to private and family life, and the right to marry and start a family.
The Convention says that all the rights and freedoms it contains must be secured for everyone without discrimination.
Since its creation, member states have added extra rights to the Convention. These have been in the form of ‘protocols’, and include the right to education and the prohibition of the death penalty. Member states can choose whether or not to ratify (agree to be bound by) the additional protocols.
What is the European Court of Human Rights?
The Court was created in 1959. It is made up of one judge from each of the 46 member states.
The judges are nominated by the state concerned and elected by the Parliamentary Assembly of the Council of Europe, which is made up of parliamentarians from each state, including 18 from the UK Parliament.
While the judges are elected in respect of each country, they are required to be independent and impartial.
Hugh Mercer KC is the current UK judge at the Court.
What is the Human Rights Act?
Parliament passed the Human Rights Act with cross-party support in 1998 to incorporate ECHR rights into UK law. The HRA was introduced as a way to “bring rights home”, and enable people to protect their rights in UK domestic courts, rather than face the time and financial costs of bringing a case to the European Court of Human Rights.
Today, people in the UK can only apply to the ECtHR if they have taken their case as far as they can in UK courts.
How does the Human Rights Act affect UK public services?
The HRA creates a legal obligation for all public bodies – including the police, hospitals, care homes and local councils – to protect rights in all their day-to-day decisions and actions.
It is unlawful for a public body to act in a way that is incompatible with an ECHR right, unless because of a law passed by Parliament, they could not have acted differently.
How does the Human Rights Act affect UK courts?
UK courts are required under the HRA to ‘take into account’ the case law of the European Court of Human Rights when considering a human rights issue, but they are free to depart from this case law and sometimes do.
The HRA does not enable UK courts to strike down Acts of Parliament. Rather, it directs courts to seek to interpret legislation in a way that is compatible with ECHR rights and, if this is not possible, higher courts can issue a declaration of incompatibility. They do so rarely, on average around twice per year.
Declarations of incompatibility do not invalidate the law, but signal to the government Parliament that the law should be reconsidered. It is for the government, and ultimately for Parliament, to decide whether and how to change it.
How does the Human Rights Act affect Parliament?
The Human Rights Act was designed to maintain parliamentary supremacy. The HRA is an ordinary statute: Parliament can decide whether to revise or repeal it. Courts cannot strike down a law passed by Parliament, even if they find that it is incompatible with Convention rights.
When ministers introduce a Bill, they must tell Parliament whether or not they consider it compatible with human rights. Ministers can decide that, even though the law risks being incompatible with human rights, they want to introduce it anyway. Parliament can then choose whether or not to pass the law.
How does the Human Rights Act apply in different parts of the UK?
The HRA applies across the UK. It has a stronger effect in the devolved nations of Scotland, Wales and Northern Ireland than it does in the Westminster Parliament. The Scotland Act 1998, the Wales Act 1998 and the Northern Ireland Act 1998 each prevent the devolved assemblies from passing legislation that is incompatible with Convention rights.
As a result, acts of the devolved legislatures or executives can be quashed by courts for non-compliance with the ECHR, unlike laws passed by Parliament.
When can cases be taken to the European Court of Human Rights?
Individuals and organisations can make an application to the European Court of Human Rights if they believe their rights have been violated by a public authority – but only if they have ‘exhausted’ (i.e. used) every avenue available to get redress in their national legal system.
Each year, most applications to the Court made against the UK are found to be inadmissible. This means they are not accepted by the Court; for example, because the applicant has not used all reasonable routes to a remedy in the UK courts or because they have taken too long to apply, or their case is not well-founded. Only a tiny proportion of UK applications result in the finding of a violation.
What happens if a state is found to be in violation of the ECHR?
If the Court finds that a state has violated one or more rights, this creates a legal obligation on the state to provide a remedy, stop the violation if it is ongoing, and ensure it does not happen again.
This may involve taking individual measures, such as releasing someone who has been unlawfully detained or paying damages. A judgment may also require the state to take general measures to remedy a problem in the law or practice of a state, such as a discriminatory law or inhuman or degrading prison conditions, which may affect large numbers of people.
The Court rarely indicates exactly what steps a state should take to remedy a violation, and states generally have wide discretion in deciding what steps to take. They do so through dialogue with the Committee of Ministers, the decision-making body of the Council of Europe, which is responsible for ensuring that member states comply with judgments of the Court through a political monitoring process.
The Committee is made up of the foreign ministers of the 46 member states.
About the project
"Know the Facts" is part of the project “Human Rights: Informing the UK Debate”, a collaboration between the Modern Slavery and Human Rights Policy and Evidence Centre (University of Oxford), the Bonavero Institute of Human Rights (University of Oxford), and Middlesex University.
The project aims to improve the quality of public discourse on human rights by providing expert content grounded in robust evidence and rigorous analysis. It seeks to identify and respond to inaccurate or misleading reporting or commentary about human rights. It also explores what human rights mean for ordinary people in their everyday lives, and for the values they care about such as security, dignity, accountability, democracy and national sovereignty. The project is funded by a gift from the Sigrid Rausing Trust.
