According to reports this month, the Prime Minister would contemplate withdrawing the UK from the European Convention on Human Rights (ECHR) if the government’s policies on small boats are found to violate the ECHR. This would be the wrong decision.
The ECHR is an international treaty – separate from the European Union – which most European countries committed to after the Second World War, obliging them to respect fundamental human rights.
The ECHR has been decisive in protecting important human rights against intrusive and coercive state powers when domestic law and politics have failed. These three cases demonstrate why the UK should remain a member of the ECHR.
The mass DNA database of the innocent:
Until 2010, in England and Wales the police had the power to take and retain DNA samples from all people arrested for criminal offences. This retention had no time limit, and happened regardless of the seriousness of the offence, the age of the suspect, or whether the person was eventually charged and convicted of the offence.
In 2003, the highest UK court concluded that this practice was lawful. The judges decided that the potential value of DNA evidence to solving crimes outweighed the interests of innocent people in having their private information deleted from a police database.
By contrast, in 2008 in a case called S and Marper v United Kingdom, the Strasbourg Court – the international court that interprets the ECHR – concluded that this practice was a disproportionate interference with people’s right to respect for their private life (Article 8 ECHR). While the Strasbourg Court agreed that DNA evidence was essential in the fight against crime, it added that this could not justify a blanket state power to retain innocent people’s DNA forever.
This is a critical example of the ECHR being used to promote proportionate, targeted government action, rather than excessive, precautionary, and absolutist interferences.
Arbitrary terrorism stop-and-searches:
Under the Terrorism Act 2000, senior police officers could authorise any uniformed officer within a defined geographic area to stop-and-search any person or vehicle for articles connected with terrorism. These searches could be conducted randomly without any suspicion of criminality. Refusal to submit was a criminal offence. In London, this authorisation had been granted on a rolling basis for five years. The public was not told when an authorisation was in place.
The highest UK court concluded that not only was this power lawful, but that in many instances it did not even interfere with people’s privacy. As one of the judges put it:
“I am…doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life…I incline to the view that an ordinary superficial search of the person and an opening of bags…can scarcely be said to reach that level.” (para.28).
This sentiment was common among the senior British judiciary. In a similar case, the judge remarked that people should not be “over precious” about minor infringements of their privacy by the police “which are the price today of participation in numerous lawful activities conducted in large groups of people.”
By contrast, in 2010 in the case of Gillan & Quintan v United Kingdom, the Strasbourg Court concluded that there was a violation of the right to respect for people’s private life. Finding against the “put up with it” attitude of the British courts, the Strasbourg Court was insistent that:
“The use of…coercive powers…to require an individual to submit to a detailed search of their person, clothing and personal belongings amounted to a clear interference with the right to respect for private life.”
The Strasbourg Court also determined that this was an arbitrary power with too few safeguards against abuse and misuse to be considered lawful.
Again, the ECHR promoted a more proportionate, targeted approach to state power.
Public interest journalism:
Between 1958 and 1961, a drug called thalidomide was prescribed to pregnant women in the UK as a sedative. Sadly, this drug caused severe physical disabilities in fetuses and around 450 babies were born with life-changing conditions. In the early 1970s, affected families brought legal action against the drugs company and entered negotiations for financial settlements.
The Sunday Times wished to publish stories related to the company’s negligence. Instead, the drugs company lobbied the Attorney-General to institute contempt proceedings to restrain publication of the stories. The British courts granted a broad injunction preventing The Sunday Times “by themselves, their servants, [or] agents” from “publishing, or causing or authorising…to be published” anything which “prejudges” the legal issues related to thalidomide.
The Strasbourg Court took a different approach. In 1979, in the case of Sunday Times v United Kingdom, the Strasbourg Court concluded that this was a violation of the newspaper’s freedom of expression (Article 10 ECHR). While the Court recognised the need for limitations on freedom of expression to ensure the fair administration of justice, the judges were struck by the breadth of the prohibition on journalistic speech imposed by the British courts.
As the Strasbourg Court put it: “Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them.”
There are many reasons why it would be a bad idea for the UK to withdraw from the ECHR. Because we would be joining Russia and Belarus in being the only European countries who are not signatories. Because it would undermine the UK’s reputation as a leading centre for the rule of law and human rights. Because it would undermine the international rules-based order when it is already on life support. But the best reason is because the ECHR works.
The effective protection of liberty and human rights requires a network of measures – political, social, economic, legal, domestic, and international. The ECHR will never be the only solution, but it is part of the solution, and the UK should remain a committed member.
Lee Marsons is a Senior Researcher at Public Law Project and can be followed on Twitter @LeeGTMarsons.