What’s the ECHR good for? Absolutely nothing
Britons have fewer rights and liberties than they did before human-rights lawyers got involved.
LUKE GITTOS, COLUMNIST
Calls to leave or significantly reform the UK’s relationship with the European Convention on Human Rights (ECHR) are now coming from the political mainstream.
In recent months, three former Labour home secretaries – Charles Clarke, David Blunkett and Jack Straw – have all urged the government to do something about the ECHR. Even the current UK justice secretary, Shabana Mahmood, has argued that thanks to the ECHR, public confidence in ‘the rule of law is fraying’.
It’s quite a turnaround. For a long time, our political and media class derided critics of the ECHR as far right. Now, it’s only the most rusted-on members of the international-law fan club still holding this view. Chief among them is Keir Starmer’s attorney general, Richard Hermer. In May he said that those criticising the international legal obligations of the ECHR were echoing arguments made in 1930s Germany by Nazi jurists like Carl Schmitt. Likewise, international lawyer Philippe Sands said that leaving the ECHR would take ‘Europe and the world back to the 1930s’. Laura Smith of the Joint Council for the Welfare of Immigrants went even further to claim that it would ‘tear through centuries of British legal tradition – from the Magna Carta to the Human Rights Act’.
This is, and always has been, complete nonsense. Many of the freedoms set out in the ECHR were already well established under English common law. In several cases, they have actually been eroded since the ECHR was signed – especially since the Human Rights Act 1998, which incorporated the ECHR fully into UK law.
Take Article 6, which guarantees a right to a fair trial. Most cases relied on in English criminal courts today come from our own common-law tradition. By the time the ECHR was signed by the UK in 1951, criminal defendants could not be forced to give evidence or to respond to police questioning. They were entitled to legal representation. The doctrine of habeas corpus meant criminal defendants could not be imprisoned without a lawful reason.
All of these protections have been weakened by Westminster in recent decades. The Criminal Justice and Public Order Act 1994 eroded the right to silence by allowing juries to draw ‘adverse inferences’ from a defendant’s refusal to give evidence. In the early 2000s, terror legislation expanded the reasons one could be detained without charge. Starmer’s government is now considering abolishing juries in certain cases. Britain’s subservience to the ECHR has hardly protected the right to a fair trial, in other words.
The same pattern holds with privacy and ‘family life’, purportedly protected by Article 8. This article is the focus of calls for reform, given that it is widely seen as frustrating efforts to deport those who are here illegally. Yet while Article 8 has made a mockery of the UK’s borders, it has done little to protect the privacy of citizens. The Regulation of Investigatory Powers Act 2000 gave the state unprecedented surveillance powers, extending even to local authorities. And the Investigatory Powers Act 2016, otherwise known as the ‘snooper’s charter’, gave security services access to bulk personal data, including phone, email and internet records.
The same goes for Article 10 and the right to freedom of expression. Despite the ECHR, freedom of speech has been under near constant attack. The Terrorism Act 2006 created speech crimes such as ‘glorifying terrorism’. The Online Safety Act 2023 imposed expansive new duties on online platforms, with chilling effects on debate. As many as 30 people per day are arrested for supposedly ‘grossly offensive’ speech online. And thousands are visited by police for what they tweet, even when their speech plainly does not cross the criminal threshold. Instead, a ‘non-crime hate incident’ is recorded against their name.
Then, of course, there were the Covid lockdowns of 2020 and 2021. These amounted to the greatest ever suspension of our liberties in history. And the ECHR proved utterly powerless to prevent them.
Furthermore, many of the freedoms we still enjoy today long predate the ECHR. Torture was outlawed in England centuries ago. As the jurist Sir Edward Coke put it in 1628: ‘There is no law to warrant tortures in this land, nor can they be justified by any prescription.’ Likewise, the death penalty was abolished by parliament in 1965.
The truth is that the ECHR and the Human Rights Act have been excellent at taking credit for our hard-won rights and freedoms. They have been far less effective at protecting them. We have nothing to fear from the growing opposition – a reckoning is long overdue.
Luke Gittos is a spiked columnist and author.
This article (What’s the ECHR good for? Absolutely nothing) was created and published by Spiked Online and is republished here under “Fair Use” with attribution to the author Luke Gittos
See Related Article Below
The court that stops us speaking our mind
Strasbourg is spooked by the idea of US-style protections for free speech
ANDREW TETTENBORN
Depressingly few people care about the right to free speech these days. Pressure groups, ranging from uncompromising Islamists through trans activists to Palestinian hardliners, relentlessly demand more and more curbs on our right to say what offends them; experts clamour for the right to censor what we see to save us from what they see as disinformation.
Meanwhile the government, and the police, find this to be just fine. They are only too content to go for the quiet life, give in to demands of this kind and quietly back them with the force of the state. Intellectuals, for their part, are little better. For most of them it’s enough to say, with a shrug, that there’s nothing special about speech, that bad speech causes all sorts of harms and that it’s quite all right to suppress it on that account.
All this means that, having once been a country with a proud indigenous tradition of protecting our right to speak our mind come what may, we now rather shamingly have to import our safeguards from abroad. Notably, this means a disproportionate reliance on Article 10 of the European Convention on Human Rights, which protects free speech.
Unfortunately, as academic Natalie Alkiviadou makes clear in her excellent book Hate Speech and the European Court of Human Rights, this European-style guarantee seriously short-changes us. As she points out with impeccable logic, this is at least partly because of the workings of the ECHR exception for hate speech.
It’s not so much that this exists but rather that the European Court of Human Rights in Strasbourg has so expanded and distended the exception that it now waves through with much too little scrutiny a vast number of speech restrictions imposed by governments who have pressure groups to placate and mavericks to silence.
It didn’t have to be this way. Even assuming that there should be a hate speech exception to the right of free expression in the first place (something not obvious, since the First Amendment in the US does perfectly well without it — but that’s another story), its effect could have been much more narrowly construed. Dr Alkiviadou would by preference have restricted it to extreme cases, such as open Nazi or genocidal propaganda, or to statements likely to give rise quite directly to violence.
Otherwise, she would have liked (as, one suspects, would most readers of The Critic) Strasbourg to say in a muscular way that Article 10 applied and that those who disapproved of others’ controversial speech had to put up or shut up.
It was not to be so, however, as this book tellingly recounts. Strasbourg is spooked by the idea of letting people speak their mind US-style. Tellingly, one of its judges in 2012 let the cat out of the bag when he said that whatever people might think in the US, “today’s Europe cannot afford the luxury of such a vision of the paramount value of free speech”.
Hence, not only has the court said that a tendency to violence is not necessary to trigger the hate exception, it has set a remarkably low threshold for invoking it as an excuse for blocking speech it doesn’t like.
It said in 2009, for example, that it was entirely acceptable to penalise expression that might be “insulting to particular individuals or groups” and so upheld the conviction of a Belgian politician who openly criticised the “Islamisation of Belgium”. Similarly, too, when faced with material suggesting that homosexuality is somehow beyond the moral pale, which was therefore seen as insulting to gay people.
Not that the person insulted need even be alive: in 2019 Strasbourg happily gave the green light to the criminalisation of an Austrian who had given seminars insulting Mohammed, thus in effect condoning the enforcement of widespread blasphemy laws that prohibit mocking or attacking religious symbols.
The list goes on. Article 17 of the ECHR, which excludes from the Convention’s ambit activities that are “aimed at the destruction of any of the rights and freedoms set forth herein”, has been said, somewhat vaguely, to remove protection entirely from anything “incompatible” with ECHR values, “notably tolerance, social peace and non-discrimination”.
The court has thus found no free speech problem with the 2003 prosecution of an Englishman who displayed a poster after 9/11 saying “Islam out of Britain — Protect the British People” or that of a Greek Orthodox priest who in 2015 used strong language to criticise the legalisation of same-sex unions.
At times, Strasbourg can go even further. In an alarming case against Bulgaria four years ago, the prosecution of a politician for what the ECHR judges saw as hate speech against gypsies and others was said to be not only justified under the Convention but actually required by it, as an aspect of protecting the victims’ private life.
In 2023, it enthusiastically endorsed the punishment of French politician Julien Sanchez, mayor of a run-down town in southern France, who had said nothing at all but merely failed to remove complaints that constituents had posted on his website about what they saw as North Africans’ lawless behaviour.
Put bluntly, from reading this book it’s hard to avoid concluding that Strasbourg has morphed from a vigorous protector of free speech to an over-cautious moderator of it. Fifty years ago there were signs that it might be different. In a 1976 case against the UK concerning the mildly pornographic and highly subversive Little Red Schoolbook, it ringingly said that freedom of speech had to apply not only to information or ideas “favourably received or regarded as inoffensive” but also to “those that shock and offend, shock or disturb the state or any sector of the population”.
This is frequently cited as a sign of Strasbourg’s open-mindedness. What is less often pointed out, but made clear by Alkiviadou, is that it is all too frequently followed by a metaphorical “but” and a finding that the free speech restriction in question is entirely justified.
The beauty of this book, which is thoroughly recommended, is twofold. First, whilst written by someone who supports the Strasbourg system in principle, it provides embarrassing chapter and verse as regards the decline of the European Court of Human Rights as a protector of freedom. Secondly, whilst it is an academic law book, don’t let that put you off. It’s readable and layman-friendly, and it will leave you as well informed as (in all probability) you are exasperated.
This article (The court that stops us speaking our mind) was created and published by The Critic and is republished here under “Fair Use” with attribution to the author Andrew Tettenborn
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