What’s the ECHR good for? Absolutely nothing

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.