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Lord Alton of Liverpool
To move that this House takes note of the 75th anniversary of the European Convention on Human Rights.
Lord Alton of Liverpool (CB)
My Lords, as we mark the 75th anniversary of the European Convention on Human Rights, I thank my noble friends on the Cross Benches for selecting the Motion and express my gratitude to the many distinguished Members from all parts of your Lordships’ House who are participating in this debate. I also thank the Library and the many organisations which have sent briefing material, from the Law Society to the International Bar Association to Policy Exchange.
The Danish philosopher and theologian Søren Kierkegaard said:
“Life must be understood backwards; but … it must be lived forwards”.
Following Kierkegaard’s advice, I will begin by looking back and recalling the convention’s genesis and achievements, and then I will say something about its future.
In 2013, I opened another Cross-Bench debate marking the 65th anniversary of the Universal Declaration of Human Rights, recalling that it grew out of the egregious disregard and contempt for human rights that had resulted in barbarous acts and outraged the conscience of mankind. Eleanor Roosevelt, a key figure in crafting the 1948 universal declaration, described it as a “Magna Carta for all” people. It helped to inspire the European convention; both are foundation stones intended to be for all people and not available for selective enforcement according to culture, tradition or convenience. They should be seen as much as a declaration of human dignity as a declaration of human rights.
In the aftermath of the two world wars, which both began in Europe and which claimed the lives of some 77 million people—and in the same continent where another war rages today—a formidable array of political leaders showed extraordinary zeal and exemplary commitment in creating architecture to uphold the rule of law. Intrinsic to that were international covenants, many of which focused on human rights. In 1946, those barbarous acts which had outraged the conscience of the world prompted Winston Churchill to set out the case for a new international order based on the rule of law and human rights. Outraged consciences led to practical actions.
Lawyers such as Raphael Lemkin, 49 of whose relatives were murdered in the Holocaust, bequeathed the 1948 genocide convention, while Sir Hersch Lauterpacht developed the legal concept of crimes against humanity. At Nuremberg, Lauterpacht helped draft the speech of the British prosecutor Hartley Shawcross—the Labour Member of Parliament for St Helens and later Lord Shawcross—who in turn collaborated with Sir David Maxwell Fyfe, the Conservative Member of Parliament for Liverpool West Derby and later the first Earl of Kilmuir—in the prosecution of Nazi war crimes after World War II. He played a significant role too in drafting the European Convention on Human Rights.
The agenda had been set in Missouri, by Winston Churchill in March 1946, where, flanked by President Truman, he famously remarked that an iron curtain had descended across Europe. He insisted:
“We must never cease to proclaim in fearless tones the great principles of freedom and the rights of man”.
Two years later, speaking in The Hague, he presided at a grand congress of 800 delegates and said:
“In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law”.
The congress issued a message to Europeans calling for a charter of human rights and
“a Court of Justice with adequate sanctions for the implementation of this Charter”,
leading, in 1950, to 15 European nations signing the convention, with Britain the first to ratify it in 1951.
The text was crafted largely by a team of Oxford and Cambridge professors headed by Maxwell Fyfe. Other British politicians involved in the drafting of the ECHR included Harold Macmillan, Samuel Hoare and Ernest Bevin. The signatories described their convention as a mechanism for
“enforcement of certain of the rights stated in the Universal Declaration”.
Churchill wanted
“moral concepts … able to win the respect and recognition of mankind”,
urging lawmakers:
“Let there be justice, mercy, and freedom”.
Churchill envisaged a Strasbourg court before which violations
“in our own body of … nations might be brought to the judgment of the civilised world”.
In a ringing endorsement, the Daily Telegraph said the convention was
“the turning point when the free peoples of Europe rejected enslavement in the communist system and defeated all attempts to poison and destroy their democratic traditions from within”.
The Times described it as
“a crucial step towards safeguarding fundamental freedoms and promoting a common European heritage of justice and the rule of law”.
The convention has created a common legal space for over 700 million citizens, prohibiting, among other things, torture or inhuman or degrading treatment or punishment, slavery and forced labour, and arbitrary or unlawful detention. Its 14 articles protect basic rights, from the right to life to the rights to privacy, conscience and religion, freedom of expression, a fair trial, family life, and more.
The UK subsequently ratified protocols to the convention on the abolition of the death penalty in all circumstances, and three additional rights: the right to free enjoyment of property, the right to education and the right to free and fair elections. Parties to the convention undertake to secure convention rights and freedoms to everyone within their jurisdiction, underpinned by the creation of the European Court of Human Rights, which deals with individual and interstate relations.
During the years following its creation, the convention commanded widespread cross-party support. Lord Chancellors such as Viscount Hailsham described it as part of the
“armoury of weapons against elective dictatorship”.
Another Member of your Lordships’ House, the noble Lord, Lord Clarke of Nottingham, said that pulling out of the convention was “xenophobic and legal nonsense”. On the Liberal SDP benches, notably Lords Wade, Grimond and Jenkins of Hillhead, and Baroness Williams of Crosby were lifelong supporters of the ECHR.
Margaret Thatcher declared that the UK was
“committed to, and supported, the principles of human rights”.—[Official Report, Commons, 6/7/1989; col. 252.]
in the ECHR. Sir John Major reiterated this commitment, and in 1998, Tony Blair incorporated the rights and liberties enshrined in the convention in the Human Rights Act. The noble and learned Lord, Lord Irvine of Lairg, told this House that the Act
“does not create new human rights or take any existing human rights away. It provides better and easier access to rights which already exist”.—[Official Report, 5/2/1998; col. 755.]
The 1998 Act was described simply as “bringing rights home”. Beyond our home, the ECHR provides reassurance to everyone living and travelling in the Council of Europe area, that we share similar, enforceable human rights standards.
Notwithstanding recent calls to leave the ECHR, last November, this Government said they remained “fully committed” to the ECHR and to
“the important role that multilateral organisations like the Council of Europe play in upholding it”.
Of course, the Council of Europe pre-dates the European Union and has no connection to it. Some 19 member states of the Council of Europe, including the United Kingdom, are not members of the European Union; Russia was expelled because of its illegal invasion of Ukraine.
The ECHR and the Council of Europe are inextricably bound together. Leaving the convention clearly means leaving the Council of Europe. Sir Jonathan Jones KC, a former Treasury solicitor and Permanent Secretary of the Government Legal Department, says that ECHR withdrawal would
“involve leaving the Council of Europe, which is responsible for the convention”.
A resolution of the Parliamentary Assembly of the Council of Europe states that
“accession to the Council of Europe must go together with becoming a party to the European Convention on Human Rights”,
while the European Court of Human Rights insists:
“Today more than ever the Convention is the cornerstone of the Council of Europe, and any State wishing to become a member of the organisation must sign and ratify it”.
Last month, Theodoros Rousopoulos, the current president of the Council of Europe Parliamentary Assembly, gave a Lord Speaker’s Lecture. We heard him pay tribute to the commitment and high-level contribution of the United Kingdom parliamentary delegation led by the noble Lord, Lord Touhig. To those who today will demand that we leave the ECHR, and therefore the Council of Europe, I would simply ask them to tell us which rights in the convention they object to. Do we really want to join Belarus and Russia as the only countries not part of any pan-European body?
In 2001, Parliament created the Joint Committee on Human Rights, which I have the honour to chair—although today, I speak for myself and not the committee. The committee has a remit to examine matters relating to human rights in the UK and it has functioned historically as a champion for convention rights.
The JCHR pays close attention to the cases before the European court, the judges of which are elected by the Council of Europe’s Parliamentary Assembly. We have noted the role of the convention and the court; for example, in ending the ban on gay people in the military, and homosexual criminalisation in Northern Ireland; in prohibiting the retention for life of DNA samples of innocent people; on indiscriminate phone tapping; on the plight of the Sunday Times, which was prohibited from publishing information about thalidomide; on the protection of vulnerable victims of domestic violence; on the combating of racism; and on the degrading punishment of a teenager in the Isle of Man.
Among our current JCHR inquiries, we are examining the failure to prosecute UK nationals who took part in the genocide in Iraq, and transnational repression and forced labour in supply chains. Previous inquiries have included reform of the Human Rights Act and the right to family life. Last week, we held a round table on the Mental Health Bill, where we heard stories of detention and incarceration. Earlier this week, I met Volker Türk, the United Nations High Commissioner for Human Rights, to discuss what we actually mean by human rights and how deeply they are connected to the laws we proclaim, the conventions we have signed, and the traditions of liberty and freedom represented by this place. The European Convention on Human Rights is an essential part of that tradition. Malcolm Bishop KC, writing in the New Law Journal, says that
“the Convention is now firmly embedded in the common law and an impressive corpus of jurisprudence has emerged, which, in my opinion, has made this country a better place”.
I agree.
To its detractors, and for the record, in 2024 the court gave just two judgments on the merits of cases involving the United Kingdom. A violation was found in one case and no violation was found in the other. In a commentary earlier this week, Joshua Rozenberg forensically addressed the caricatures and misattributions which are often wrongly laid at the door of the ECHR. By population, the UK has the lowest number of applications of all member states: three per million people, while for all states combined it was 47.4 per million. Of course, the reason there are so few UK cases is that we broadly obey the ECHR.
Those who want to reduce UK legal standards—some even want to tear up the Human Rights Act—would vandalise our constitutional settlement. This and leaving the convention in a fit of pique, rather than engaging with and reforming it, is not worthy of this country or those who entrusted this extraordinary legacy to us.
At the outset, I recalled Kierkegaard’s thought that life can only be understood backwards but it must be lived forwards. Institutions and conventions are not set in stone. There is always scope for political debate and greater definition of the respective roles of parliaments and judges around controversial issues such as border control, which the JCHR will examine. However, to throw away all the gains would make no sense and merely play into the hands of dictators and enemies of democracy. We are experiencing war in Europe, along with contempt and disregard for international law and institutions, including despicable attacks on the International Criminal Court. We see the rise of autocracies with global reach, even with reach into the UK through transnational repression by hostile states. Rights and freedoms are under assault from within and without.
In this context, we are therefore right to recall the spirit which, 75 years ago, animated remarkable leaders. We are entitled to have pride in the significant British contribution to creating both the Universal Declaration of Human Rights and the European Convention on Human Rights and genuine pride in the development of human rights, international law and the protection of fundamental rights and freedoms. To defend this legacy, we must become far more robust in the public domain—in our schools and universities—in setting out the patriotic case for these shared fundamental values.
In this 75th anniversary year of the European Convention on Human Rights, we are entitled to look back on what was achieved in the ruins of Europe and out of the ashes of Auschwitz. We must insist that those concerns remain vitally relevant to this day and that they are crucial to our future. I beg to move.
Baroness Chakrabarti (Lab)
My Lords, I declare interests as the author of the Penguin Allen Lane book Human Rights: The Case for the Defence, as a new member of our delegation to the Parliamentary Assembly of the Council of Europe and as a lifelong human rights lawyer and campaigner. I congratulate the noble Lord, Lord Alton, on his well-deserved appointment as chair of the Joint Committee on Human Rights and on that outstanding opening of his debate marking the 75th Anniversary of the convention which protects the civil rights of around 700 million people in 46 states.
I have been working with the convention on an almost daily basis for around 30 of those years, both for and against UK Governments domestically and in the Strasbourg court that has rendered it perhaps the most effective international human rights mechanism in the world. Most formatively, I was a government lawyer in the late 1990s during the passage and implementation of our Human Rights Act and at Liberty, the National Council for Civil Liberties, from 2001 until 2016.
We have been eloquently reminded of the history of why Conservative politician, jurist and Nuremberg prosecutor David Maxwell Fyfe was deputed to lead the convention drafting process after the Council of Europe was founded by the Treaty of London in 1949. If there was ever any doubt about the direct relationship between justice and peace, the 1930s had ended it. This was especially so in Europe, where two, too proximate world wars had begun. It could be no surprise that those seeking to rebuild the lands of Milton, Molière, Mozart and Michelangelo should have made co-operating around human rights enforcement a priority. If we have sometimes been a little complacent in the intervening years, surely that is over now, as war and far-rightism once more stalk Europe, and respect for the rule of law is far from secure, even in that great old constitutional democracy across the Atlantic.
In any event, I can report, first hand, the many ways in which the convention has come to the aid of people in the United Kingdom where both their common law and legislators had previously failed them. Before Strasbourg’s intervention, victims of rape were subjected to days of degrading cross-examination in person by their alleged assailants, contrary to Article 3. Similarly, abusive parents who beat their children to a pulp could be acquitted of the grave offence of causing grievous bodily harm by deploying the defence of reasonable chastisement of a child. Indeed, I would go as far as suggesting that victims of crime may be among those who have most benefited from the convention’s effect upon our domestic law, before and since the Human Rights Act 1998 brought rights home to be directly enforceable here.
There are numerous examples too of the UK’s privacy, free speech, non-discrimination and other vital rights and freedoms being ensured and enhanced by the convention. It would be far from liberal or progressive, and certainly deeply unconservative, not to treasure it.
Lord Lilley (Con)
My Lords, I congratulate the noble Lord, Lord Alton, for whom I have an enormously high regard, on securing this debate and his introduction to it. It is a paradox that defenders of the supranational European Court of Human Rights invariably begin with an appeal to British chauvinism laced with deference to Conservative icons by invoking the creation myth. That goes as follows: “The ECHR was a British invention, inspired by Churchill, drafted by Maxwell Fyfe, which codified historic British rights. Since we were the first country to ratify it, it must have been eagerly endorsed by us”.
That is almost entirely false. Attlee’s Government ratified the convention with great reluctance and only on condition that the future European court would have no jurisdiction in the UK since British people would not be allowed to take cases to the court. They also treated the convention as non-binding, deliberately not altering laws known to be incompatible with it. Moreover, when Churchill returned to No. 10 a few months later with Maxwell Fyfe, then Lord Kilmuir, as his Lord Chancellor, despite some ambiguous enthusiasm for it when in opposition, he adopted exactly the same position as Attlee, as did subsequent Conservative Prime Ministers—not allowing the court jurisdiction in the UK.
The second myth about the ECHR was that it simply codified British rights which had evolved over centuries. If that was all it did, British membership would confer little benefit and leaving would be no loss. This myth implies that few British laws would be incompatible with the convention. If only. Judgments have been made in 567 cases and the UK found to be in violation in one or more respects in no fewer than 329 of them by the Strasbourg court. In addition, the court has decided over 25,000 British cases by rejecting them or declaring the vast majority inadmissible, but after enriching the lawyers. That would be no surprise to those advising Attlee’s Government, who warned that allowing recourse to Strasbourg would provide
“a small paradise for some lawyers”—
now among its most enthusiastic supporters. In the immigration and asylum tribunals alone, human rights cases were 40% of the 350,000 cases received over the last eight years. To say it has no impact within the UK is an absurdity.
The original purpose of the European court was not to fine-tune each country’s statute book but to protect fundamental freedoms, from torture, slavery, arbitrary arrest et cetera. The third myth is that the court has succeeded in this objective. It was always unrealistic to imagine that any regime which was prepared to use torture, slavery or arbitrary arrest would be put off by the prospect of an adverse ruling by a foreign court. In practice, whenever an authoritarian regime has come to power, adherence to the ECHR has not dissuaded it from trampling on human rights. When the Greek colonels faced an ECHR ruling about the use of torture, Greece simply withdrew from the convention. Russia was expelled for the full-scale invasion of Ukraine, not for its rampant domestic human rights violations. Belarus abandoned its observer status rather than implement convention rights. Both Azerbaijan and Turkey have gone pretty far down the road to authoritarian regimes while still remaining in the convention. It is little known, but one reason that France did not even ratify the convention until 1974 was that it was aware of the use of torture and other abuses of human rights during the war in Algeria and had other reasons afterwards for remaining outside. Indeed, it did not allow its citizens to take cases to Strasbourg until 1981 but suffered little opprobrium for that.
The claim that if Britain left it would be joining Belarus and Russia is puerile. We would be joining other common-law countries, including democracies such as Australia, New Zealand and Canada, which uphold human rights without relying on a supranational court. Like them, we would make our laws democratically, not hand over the right to make laws to an international court, giving it the power to legislate rather than enforce the law.
Lord Thomas of Gresford (LD)
My Lords, I congratulate the noble Lord, Lord Alton, on his excellent opening to this very important debate.
When Ernest Davies, the Member of Parliament, signed the convention on behalf of the Labour Government in 1950, in Rome, he was not carving a monument in stone; he was putting his name to a dynamic and living convention. There were 15 signatories and now there are 46, excluding only Belarus and Russia in the European context.
The guide to the European court puts it this way:
“By its case-law the Court has extended the rights set out in the Convention so that its provisions apply today to situations that were totally unforeseeable and unimaginable at the time it was first adopted … new technologies, bioethics … the environment. The Convention also applies to societal or sensitive questions relating … to terrorism or migration … abortion, assisted suicide, body searches, domestic slavery, adoption by homosexuals, the wearing of religious symbols … the protection of journalists’ sources, or the retention of DNA data”.
What happens where there is no European convention?
Last week, in the United States, hundreds of Venezuelans were shipped to El Salvador. They were treated in an inhuman and degrading manner that would contravene Article 3 of the European convention. They were shackled, contravening Article 5, without any form of trial, contravening Article 6, and with no ability to complain to a court of the violation of their rights, contravening Article 13. The USA is a country which bows the knee to Magna Carta and the rule of law, but the US federal judge who sought to block this move has been ignored. “Oopsie, too late!”, said the President of El Salvador, pocketing the millions of dollars paid to his country.
Where have we seen this behaviour before? In Nazi Germany, the crimes of which motivated European countries to come together to sign the convention. There is a suggestion by the noble Lord, Lord Lilley, and others that the UK should withdraw and write its own, presumably on the Trumpian model.
There is good news. The Human Rights Act came into force in the year 2000. Since then, there have been 245 judgments against the UK, finding at least one violation of the convention. But the number of cases has steadily declined, from 18 per year at the beginning to just two in 2022. The number of applications, as the noble Lord, Lord Alton, pointed out, against the UK is now the lowest per capita of all European states. We have succeeded in bringing the convention home, as the noble Baroness, Lady Chakrabarti, pointed out, so that our own courts can and do apply its provisions in appropriate cases.
There are three reasons. First, the Human Rights Act creates a legal obligation for all public bodies, including the police, hospitals, care homes and local councils, to protect rights in all their decisions and actions, meaning that people’s rights are less likely to be breached in the first place. Secondly, United Kingdom courts are now the first port of call for any human rights claimant, and United Kingdom judges consider human rights more explicitly and intensively than they could before. Thirdly, the European court is much more likely today, in considering applications from this country, to follow the reasoning and conclusions of our courts and the decisions of our public authorities. It respects our judges and the way in which the Human Rights Act is applied. Ernest Davies, Ernie Bevin and Clement Attlee were right to feel proud of what they had done.
The Lord Bishop of St Albans
My Lords, I too add my thanks to the noble Lord, Lord Alton, for bringing this debate and for his speech. I am not going to explore the legal implications, but want to make a few theological points, if I may. I want to comment on the origins of the spring from which these ideas first came, how it developed into a stream and then a river, and how still today our understanding of rights and responsibilities is developing.
The noble Lord, Lord Lilley, is right. It goes back to those early chapters of Genesis. In fact, you could go back to the Code of Hammurabi, 1,700 years before Christ, but let us go back to the Ten Commandments, where we find the creation narratives where humankind is created in God’s image. It is about the inherent dignity that belongs to each and every person, not dependent on sex, wealth, education or any other differentiation. This is implied in the Ten Commandments and is developed further in passages such as Deuteronomy 10, where God defends the cause of the fatherless and the widow and loves the stranger in the land. It is why the prophet Isaiah urges the people of God to seek justice, correct oppression, defend the fatherless and plead for the widow.
However, as Jonathan Sacks, a former Member of your Lordships’ House, was keen to point out, rights are things we claim and duties are things we perform. In other words, duties, he said, are rights translated from the passive to the active mode. The biblical teaching in the New Testament reaches its fullest expression in this reciprocity in human relating, expressed by Jesus in this way: love the lord your God with all your heart, soul and mind, and love your neighbour as yourself.
Nowhere in the scriptures do we find the phrase human rights—and certainly no reference to the ECHR. Indeed, some theologians, such as the eminent Alasdair MacIntyre, have argued that human rights are actually a fiction; he simply did not agree with them as a concept. Others, including a former Member of this House, Lord Williams of Oystermouth, disagreed, saying that the fundamental theological point
“is not so much that every person has a specific set of positive claims to be enforced, but that persons and minority groups of persons need to be recognized as belonging to the same moral and civic world as the majority, whatever differences or disagreements there may be”.
He went on to argue that
“a proper consideration of human rights has a better chance of sustaining its case if it begins from the recognition of a common dignity or worthiness of respect among members of a community than if it assumes some comprehensive catalogue of claims that might be enforceable”.
All laws and all conventions are ultimately human constructs. There are some who dislike the ECHR and have problems with the wider issue of human rights. There are people who are not happy with the way that the court has interpreted the underlying legal principles which are enshrined in the convention. But the huge benefits that it has brought to so many people, particularly people who have traditionally been marginalised and not given the ability to participate and to engage, surely outweighs the frustrations that people sometimes feel. I, for one, am thankful that we have the ECHR.
Lord Jay of Ewelme (CB)
My Lords, as your Lordships will know—I am sure the right reverend Prelate, whom it is a pleasure to follow, will know—in George Orwell’s 1984, the three great regional powers of Oceania, Eurasia and Eastasia confront each other with constantly shifting alliances. Why those alliances shift is never clear, but it is the people and their human rights who suffer. Today, there is a fourth great power in the world; not only the United States, Europe—in a rather different form from the others—and Russia, but China too, watching and no doubt considering its options for Taiwan. One cannot push analogies too far, but we now live in a world of great power machismo, where international co-operation and international agreements are too often flouted. But it is precisely at times like these that they are so needed, and why it is right to focus now on the European Convention on Human Rights.
Too often, Europe, which we like to think of as civilised, has experienced the abuse of human rights: in Ukraine today, in the aftermath of Russia’s wholly unjustified and unjustifiable invasion; in Bosnia; in Serbia; in Kosovo more than 20 years ago; and in the chaos and anarchy of eastern Europe after the Second World War, brilliantly evoked in the books of Primo Levi. It is a tribute to the ECHR that more than 40 countries, with Russia of course expelled, are now its members and have accepted the international legal obligation to protect human rights, in our case through the implementation of the Human Rights Act.
Of course the ECHR is not perfect. Of course some member states fail to observe all their obligations under it. But Europe and, through Europe’s example, other parts of the world are the better for it. As an original signatory, Britain gained respect and influence. That must remain the case so that Britain, as a constructive and active member, can help to realise the ECHR’s principles. I do not favour withdrawal from the ECHR. I believe in exercising our influence for good within it. I am glad that the Prime Minister has said that the Government are unequivocally committed to the ECHR. I hope that the Minister will repeat that commitment today.
Baroness Kennedy of The Shaws (Lab)
My Lords, I declare that I am a practitioner at the English Bar and the president of the council of Justice, a leading British law organisation. I am the director of the International Bar Association’s Human Rights Institute, an honorary Writer to the Signet in Scotland and, as your Lordships heard earlier, I am currently working for President Zelensky, heading up with his chef de cabinet a task force to get the children back from Russia. I have been working on that for a number of years with the Yale observatory and other bodies.
I thank the noble Lord, Lord Alton. We owe him a debt of gratitude in this House for his constant reminders of our common humanity. He is tireless in his work on the abuses that happen around the world, so it is no surprise that he is speaking here in protection of the values of the European Convention on Human Rights. It amazes me that the very same people who fought tooth and nail to take us out of the European Union—a step which has been ruinous for the economy of this country—are still seeking to sever ties with our European neighbours, especially when it is clear that we have to retain our bonds of connection with Europe and European nations in the face of grievous threats from Russia.
Withdrawal from the ECHR would be disastrous. The Human Rights Act has enriched our law enormously, and it has been especially productive for women. I say that as someone who has been very much on the front line in cases concerning the rights of women. You have only to think about the case of Worboys, where it was possible to use the ECHR before the courts to make sure that rape was properly recognised in prosecutions. Vulnerable victims of domestic violence have received better protection because of the Human Rights Act. There is also the ending of the ban of gay people in the Army, the inquiry into the sex abuse of women in the Army, the better protection of children against corporal punishment and sexual abuse, the greater protection of the media, the ending of detention without trial at the beginning of the 21st century, the prevention of torture from other countries being used and evidenced in our courts, and the protection of religious freedom. The list is enormous. It has also been vital in the Northern Ireland peace process.
You cannot pull out of the ECHR without leaving the Council of Europe. This alliance promotes democracy, human rights and the rule of law across 46 states. Since its inception, the Council of Europe has accepted over 200 treaties, conventions and protocols, including the Istanbul convention, to end violence against women and girls and to end domestic violence; the Lanzarote convention, to protect children from sexual exploitation and sexual abuse; and the Council of Europe convention against human trafficking. I hear the muttering on the Benches opposite, but we should remember the work that is done through the Council of Europe to defend local and regional democracy and governance. It observes elections and promotes good governance through the exchange of experience among member states—which I have done. The Council of Europe also helps member states to fight corruption and terrorism, and undertakes necessary judicial reforms. It has a group of constitutional experts, the Venice Commission, which offers legal advice to member states. Are we going to pull out of that?
The Council of Europe is supporting the people of Ukraine in the face of Russia’s ongoing aggression. It has a dedicated Ukraine action plan and a development bank which is aiding Ukraine in its recovery efforts and accommodating Ukrainian refugees. Are we really going to put all this at risk? Are we really going to reduce ourselves to little Englanders? That is what it would mean, because the people of Scotland, Northern Ireland and Wales do not want to leave the European Convention on Human Rights.
The Earl of Dundee (Con)
My Lords, while congratulating the noble Lord, Lord Alton, on securing this debate, I begin by paying tribute, as he and others have done, to one of the ECHR founders and drafters in the 1950s, Sir David Maxwell Fyfe—later Viscount Kilmuir from 1954 to 1962 and Lord Chancellor here under Churchill, Eden and Macmillan—who earlier on at the Nuremberg trials, through his fair-minded skill and clarity as a prosecuting counsel, played an enormous part in enabling the German public to understand and accept the guilt of their leaders for crimes against humanity, his cross-examination of Hermann Göring becoming one of the most noted in history.
I join with your Lordships in giving huge thanks for the ECHR, whose 75th anniversary we now commemorate; for the extent to which it has not only healed wounds but with balanced purpose, as implied by the right reverend Prelate the Bishop of St Albans, reinvigorated the heart, mind and soul of Europe; yet furthermore, for its success in providing soft power, direction and stability well beyond Europe and throughout the world; thus with efficacy accomplishing what was intended of it in the first place, as expressed by Maxwell Fyfe in Strasbourg in August 1949, and I quote:
“We cannot let the matter rest at a declaration of moral principles and pious aspirations, excellent though the latter may be. There must be a binding convention”.
In my remarks today, I will briefly touch on three aspects: the scope for the United Kingdom to achieve results through the Council of Europe; education as a human right; and the practicalities of its delivery.
During the progress of the Data (Use and Access) Bill, your Lordships will recall that this House voted to protect private copyright under Council of Europe standards, yet in which regard we can still proudly reflect that the present copyright protection ECHR conventions are precedented and inspired by the United Kingdom in 1710, three years after the 1707 Act of Union, through the Statute of Anne, which granted publishers of books legal protection.
Particularly so to our advantage here as a revising Chamber, and as emphasised by the noble Lord, Lord Alton, and others, countless examples come to mind of the Council of Europe as a natural ally within which affiliation of 46 states the United Kingdom remains a prominent member, and where I am a recent chairman of its committee on education.
As we are all well aware, the numerous groups of people suffering disadvantage in education range from girls and women, students with disability and special needs, learners living in remote areas, and refugees and asylum seekers to those experiencing discrimination against them from a number of pretexts and prejudices, and not least those living in countries where education systems are insufficiently developed.
During its G7 presidency in 2021, the United Kingdom gave a commitment to promote education in the third world and elsewhere as necessary. What actions have the Government taken since then? Which initiatives are in progress? Can the Minister affirm that such G7 plans are being clearly designed and carried out so that they contribute towards building up the strength of international communities themselves?
What plans do the Government have, along with international partners, including at the Council of Europe, to co-ordinate the delivery of a variety of international education initiatives which are at risk of financial cuts?
As well as students, such interventions clearly stand to benefit communities, cities and regions as well. One example is the current academic partnership of joint research into green energy between the Scottish University of the Highlands and Islands in the United Kingdom and the University of Zadar in Croatia. Having helped to put this together, I declare an interest as current chairman of the All-Party Parliamentary Group on Croatia. What steps are the Government now taking to actively encourage similar partnerships, possibly facilitated by Horizon and other schemes?
Following ECHR and education as a human right, enhanced prospects for world peace will also derive from much better education and competitive skills opportunities at grass roots and within all international communities. Given that G7 countries have already embraced that objective, the United Kingdom, in its own interest and that of others, must now help to ensure that this objective is properly carried out.
Lord Faulks (Non-Afl)
My Lords, about 10 years ago, as a Minister, I visited the European Court of Human Rights in Strasbourg. I was there to apologise to the Committee of Ministers for the fact that we had not yet given prisoners the vote. While I was there, the president of the court kindly gave me a book about the convention and the court entitled The Conscience of Europe. It was a fascinating account of the establishment of the court and its development for the subsequent 65 years.
But it is important to remember the context in which the convention was born. The noble Earl has given a very vivid account of that. This was a continent devastated by war in which the population had been deprived of all the most basic human rights. But did the architects of the ECHR really envisage that an asylum seeker here would be able to rely on the convention when arguing that his children’s liking for chicken nuggets meant that he should not be returned to his country of origin because to do so would violate his human rights? This and so many other cases have trivialised human rights and are not reflective of the legacy of those responsible for the convention.
I declare an interest as a member of the Commission on a Bill of Rights set up by the coalition Government. Perhaps more important is the fact that, since the Human Rights Act 1998 came into force, I have regularly acted for public authorities. Time does not permit me to give a full list of all my failures, but I was recently reminded of one. A group of prisoners sought damages on the basis that their human rights had been violated because they were not given heroin while in prison—a breach of Article 3, apparently. I acted for the police because a number of Nigerian young women living in this country had been kept in domestic servitude by some rather richer Nigerians. The court was asked to find, and did find, that the police were guilty of a violation of human rights for not being sufficiently curious—not the girls’ captors, the police.
I am extremely reluctant to suggest leaving an international institution of any sort. We know they are rarely perfect, but it is surely better that they exist. I am conscious of the importance of remaining on good terms with our European allies, particularly at this moment, and I voted to remain in the European Union, but I have come to the conclusion that at the very least we should repeal the Human Rights Act. The obligation in that legislation to take into account Strasbourg jurisprudence has produced some very unsatisfactory results. The process of taking into account can itself be difficult, given the variable quality of some of the judgments. It has meant that we pay far greater heed to the court’s decisions than any other countries in the Council of Europe—a particular irony, since there are so few decisions against the United Kingdom.
This Government have an almost theological approach to the ECHR and the HRA, but critics of the way in which it has operated in practice are not confined to those on the right, as noble Lords may have observed. My view is that Parliament and the courts are not only capable of but better suited to protecting human rights here. Our current arrangements amount to a significant subcontracting of the task to an international court.
Like others, I am most grateful to the noble Lord, Lord Alton, for bringing this debate to your Lordships’ House. With his passion for the protection of human rights, he would have made a great contribution to the ECHR had he been around at the time. Indeed, he would have been a worthy guardian of the conscience of Europe. It is thus a matter of profound regret that I must express the view that the whole concept of human rights has been brought significantly into disrepute.
Lord Neuberger of Abbotsbury (CB)
My Lords, I spent 21 years as a barrister and then five years as a judge, arguing and applying English law while the rights contained in the human rights convention were not part of our law. Then from 2001, shortly after the Human Rights Act came into force, I spent 16 years as a judge applying and developing our law so that it incorporated convention rights.
Across the UK legal system, whether in civil law, public law, criminal law or family law, the Human Rights Act introduced important new rights such as the right to privacy and family life. It reinvigorated many previously stultified rights, such as freedom from detention. It re-emphasised the importance of vital rights, such as freedom of expression, and it increased the rights of all citizens against excesses of the state—a particularly important feature at a time of ever-increasing regulation.
I am no starry-eyed human rights groupie. As a senior judge, I tried to ensure that the new human rights jurisprudence did not cause the common law, of which this country should be so proud, to wither away. Rather, I tried to ensure—and I hope that, together with my colleagues, I succeeded in ensuring—that judges developed the common law so that it incorporated and benefited from the principles of the convention.
Of course, human rights law can occasionally lead to results with which many people will disagree, but the application of established law in any field can result in unpopular decisions, and that is a particular risk with a law that paints on such a broad canvas. Many decisions that are unpopular in this connection are concerned with asylum, but this country’s international duties with regard to asylum seekers are controlled as much by United Nations treaties as they are by the convention. There is a real danger that the public get a warped view of human rights, with the media focusing on cases that can be portrayed as leading to surprising results. Many of those cases are inaccurately or very one-sidedly reported. Although a number are not unfairly or inaccurately reported, they should be contrasted with the many unreported decisions where human rights have enabled or assisted a judge to get a fair answer that otherwise he or she may not or could not have done.
In the number of cases where the result seems rather odd, I am sometimes rather surprised that the Government or the relevant public body have not chosen to appeal. Judges do not always get things right, and appeal courts are there to deal with that, but too often there are no appeals when there should be.
Forty-six countries have signed up to the convention. It is a civilised force in an increasingly unstable world. Because its decisions apply over so many countries, the Strasbourg court judges generally appreciate that they have to tread carefully when laying down the law. They have developed the concept of a margin of appreciation to enable individual countries to make their own rules in some sensitive areas, such as assisted suicide. In my experience and knowledge, the Strasbourg judges have been prepared to reconsider and go back on decisions when a UK court has given judgment explaining why it thinks a particular Strasbourg court decision may be inappropriate for the UK.
This country is almost unique in the world in having no coherent overarching constitutional document. Because of that, the Human Rights Act has a particularly important role in protecting individual freedoms and liberties. It has been cleverly drafted so as to give human rights a special status in our constitution without overriding the supremacy of Parliament. We should be valuing it, not trashing it.
Lord Rook (Lab)
I draw the attention of the House to my registered interests: I am a partner at the Good Faith Partnership, which provides the secretariat for the UK FoRB Forum. I thank the noble Lord, Lord Alton, for this debate and, as other noble Lords have noted, for his tireless commitment to human rights. He has long been an inspiration to me and, as a new Member of the House, I hope to become more like him when I grow up.
I wish to draw noble Lords’ attention to the importance of the European Convention on Human Rights for the pursuance of freedom of religion or belief. Born amid the growing realisation of the full and horrific extent of the Holocaust, the issue of freedom of religion is core to the convention. “Everyone,” Article 9 declares,
“has the right to freedom of thought, conscience and religion”.
Sadly, the fight for religious freedom is far from won. More than 80% of the world’s population live in states where there are severe or significant restrictions on their freedoms, and that number is rising. Although this continent is home to the convention, there remains work to be done and threats to guard against. A few years ago, I sat in the gallery of the Bundestag, witnessing the understandable anger and outrage of the majority of its members as one party repeatedly refused to condemn the internment of Uyghur Muslims in so-called education camps in China. Watching this scene play out in that place was chilling, to say the least.
I am grateful for the leadership of our Government in this area, for the work of my noble friends Lord Collins of Highbury and Lady Chapman of Darlington, and for the appointment of my honourable friend David Smith MP as the UK’s Special Envoy for Freedom of Religion or Belief. I am certain that they will build on the work of the noble Lord, Lord Ahmad of Wimbledon, and previous envoys to ensure that we as a country remain a leading force for freedom of religion or belief around the world.
Finally, I ask the Minister to take this opportunity to assure the House of this Government’s continued support for the court that upholds the convention. As the noble Lord, Lord Alton, mentioned, the European Court of Human Rights has only once found the UK to be in breach of Article 9. We can certainly be proud of our record. We must continue to hold ourselves to the highest standards and make ourselves accountable for our decisions and actions.
The challenge to reduce persecution around the world is beyond the powers of any one country. At a time when intergovernmental institutions are all too often and all too easily undermined, the court and its convention offer a unique opportunity for nations and institutions to work together to fashion a world where people are truly free.
Lord Murray of Blidworth (Con)
My Lords, it is a privilege to serve on the Joint Committee on Human Rights under the chairmanship of the noble Lord, Lord Alton, whose timely debate this is and whose contribution we heard earlier. As a barrister practising in part in the field of public law and human rights, and as a member of the Joint Committee on Human Rights, and like all noble Lords who have spoken, I place the highest value on human rights. However, human rights are not one and the same thing as the European Convention on Human Rights as it is today.
In March 2021, the former professor of law and legal philosophy at the University of Oxford, John Finnis, and I wrote a paper for Policy Exchange entitled Immigration, Strasbourg, and Judicial Overreach. In his foreword to that paper, the noble and learned Lord, Lord Hoffmann, noted that:
“There is only one way to determine the limits of the commitment undertaken by the states which subscribed to European Convention on Human Rights and that is by reading the instrument and construing it against the background which would have been known or assumed by the parties at the time. Indeed, this is the only way to understand the meaning of any utterance whatever. But the European Court of Human Rights have felt free to give the Convention a meaning which could not possibly have been intended by its subscribers on the ground that it is a ‘living instrument’ which it is entitled—indeed, required—to update in accordance with what it considers to be the spirit of the times”.
In the paper, we examine the transformation of the convention in respect of immigration policy, the position in 1951 being that the signatory states
“have no obligation to let in refugees … have no legal or treaty obligation to accept refugees at all … and have no absolute obligation to continue to provide asylum for refugees who are a danger to the community”.
They were matters for the states themselves.
Forty years later, the European Court of Human Rights set out a line of judgments that has circumvented those principles. It has done so along two routes. The first gives the ECHR’s absolute prohibition of torture and inhuman treatment, found at Article 3, a radically expansive interpretation, which is neither morally nor legally warranted. The second circumvention has been via Article 8—the right to a private and family life—which has been expanded to override immigration controls. This is something which those who drafted, signed and ratified the convention would certainly have rejected. These misinterpretations facilitate and incentivise unlawful migration, and hamper European states in justly handling the issue. Elastic, expansive and inauthentic treaty interpretations such as these are contributing substantially to the real risk that the rule of law in European states will be overstrained.
Behind this judicial transformation of refugee and migration law lies the doctrine, judicially invented in 1975, that the ECHR is a living instrument. This doctrine enabled the Strasburg judges to reform social arrangements, even very fundamental ones, either without debate and approval from democratic legislatures or with a retrospective approval, strongly encouraged by the court’s assertions that these reports are already required by law and by international agreements and obligations which this country has long accepted as binding. In either form, this is an unconstitutional purpose. It is unfitting for the ECHR. The convention was intended not to provide an engine to social reform, still less for top-down reforms, but to block regression from the level of respect for rights that was standard in 1950 in the founder states—distinguishing them from the defeated fascist states and communist tyrannies imposed on Europe in the late 1940s.
The calls for withdrawal that we have heard in relation to the convention come about as a result of these issues. I submit that this House will expect to see the European Convention on Human Rights reformed, or face a clamour which may be unavoidable.
Baroness Brinton (LD)
My Lords, I congratulate the noble Lord, Lord Alton, on securing this important debate on the 75th anniversary of the European Convention on Human Rights. I echo the remarks of noble Baroness, Lady Kennedy, about the important contribution the noble Lord has made to human rights over many years. I declare my interest as a delegate to the Parliamentary Assembly of the Council of Europe and a member of its Committee on Legal Affairs and Human Rights. I am also the chair of the human rights committee at Liberal International, which is a designated NGO to the UN Human Rights Council.
In following the noble Lord, Lord Murray of Blidworth, I have to say that I did not agree with his views but I am grateful that he and I are both free to say what we wish to. Millions elsewhere in the world are not, because they do not have the human rights and freedom to do so.
Others have already explained the creation of the European Convention on Human Rights, and the role of the Council of Europe in the establishment of the European Court of Human Rights. PACE appoints the judges and takes evidence on key matters relating to human rights, and it is able to bring states together to address failures, even—or especially—by PACE’s own member states.
PACE meets in two weeks’ time to address the new Georgian Government’s breaches of human rights following elections last year. Every day, many thousands of peaceful protestors come together across Georgia to remind the new Government that their elections were not democratic, and that new laws enabling imprisonment for the most minor offences, and the extrajudicial murder of journalists and imprisonment of civic leaders, including artists, actors, journalists and politicians, continue. As a result, PACE must decide whether to recognise the credentials of Georgian Dream, given these human rights infringements. As the noble Lord, Lord Alton, mentioned, PACE has done this before. Following the 2022 invasion of Ukraine, PACE did not recognise the Russian delegation and Russia was expelled.
UN Watch, a Geneva-based NGO whose mission is to monitor the performance of the UN by the yardstick of its own charter, made the case in April 2022 to the UN General Assembly that, following the murder of civilians in Bucha in Ukraine, Russia should be suspended from the Human Rights Council. It is completely wrong to be overseeing the protection of human rights while clearly abusing them, and Russia was suspended by a two-thirds majority. Similarly, following the murder by Iranian police of women’s rights activist Mahsa Amini in 2022, the UN Economic and Social Council suspended Iran from the Commission on the Status of Women until 2026.
These two cases are important. The UN is a body of states that rarely agrees on everything but occasionally, with outrageous breaches of human rights, it is important that action is taken. Those two states, as well as China, are now using extraterritorial action, sadly a growing area of human rights abuses—for example, Putin’s murder of Litvinenko in London, the attempted murders in Salisbury of Sergei and Yulia Skripal, and the murder of Dawn Sturgess, a completely innocent bystander. This is making the UK and its people at risk of human rights infringements by other states on our own territory.
China, like Iran and Russia, follows and monitors exiles abroad and the families of those who have fled. The threat to their safety is real. In July 2023, the police in Southampton charged a Chinese national student with racially motivated assault after he and others assaulted a Hong Kong man on the street. In that same month in Southampton, footage emerged showing pro-Hong Kong demonstrators being violently attacked by a group of Chinese nationals.
Are our front-line police being trained to recognise this extraterritorial action by other countries? Are the individuals at risk being given support and protection? Are we working with other countries and the Council of Europe on how we tackle this particularly egregious threat to human rights?
Lord Cashman (Non-Afl)
My Lords, I too thank the noble Lord, Lord Alton of Liverpool, for so powerfully moving this debate with such a comprehensive and passionate opening statement. It gives us the opportunity to note the tremendous positive impact of the convention, not only here in the United Kingdom but elsewhere. I also record my thanks to Professor Paul Johnson of the University of Leeds for his advice and support.
The convention is a vital aspect of life in the United Kingdom. It does not merely enunciate a set of important principles that most of us agree with, such as the ability to speak freely, to hold our own beliefs and to be free from interference in our private lives, as others have said. Rather, it creates a tangible and effective mechanism to allow us all to seek redress if we feel that our human rights and fundamental freedoms have been violated.
The sad fact is that it is this very enforceability of the convention, particularly by the European Court of Human Rights, that has long caused hostility towards it—hostility from those who wrongly claim that the convention and the Strasbourg court are interfering with or even damaging life in the United Kingdom. Such arguments are not new, but I do not agree with them. The very strength of the convention, which is a living instrument, is that it allows individuals who are subject to unjustified interference in their rights and freedoms to hold those in power to account. I support the Strasbourg court and its work to interpret the convention in ways that maximise the rights and freedoms of individuals and that require Governments to address any violation of those rights and freedoms.
I support the rights and freedoms of all individuals, but particularly close to my heart is the issue of protecting the rights and freedoms of lesbian, gay, bisexual and transgender people. My life has been changed for the better because of this convention and the judgments from the court. The importance of the convention to LGBT people—indeed, to any minority—cannot be overstated. It has positively transformed lives, particularly those often shunned by the mainstream.
I turn to the judgments of the court. The noble and learned Lord, Lord Etherton, who sadly cannot be in his place today, has asked me to specifically state that it was precisely because of the judgment ending the ban on gays serving in the military in the United Kingdom that we were able to end centuries of prejudice within the armed services that blighted so many lives. The Etherton review and its recommendations, accepted by the previous Government and this Government, have begun to repair some of the damage. I contend that it is because of brave individuals—in this case supported by Stonewall—who had the courage to go through arduous legal procedures that we have been able to right these wrongs, but we can do more.
Currently, because the UK has not signed up to Protocol 12, people in the United Kingdom have less protection from discrimination under the convention than in many other European nations. This is an unacceptable situation. It would be highly appropriate if, on this important anniversary, the Government would commit to extending the protection of Protocol 12 to all individuals in the United Kingdom.
In conclusion, in these dark times, as we witness unimaginable human rights atrocities on a grand scale in parts of our world, we need more assurances and protections on human rights, not fewer. Complacency is the enemy of much and many, never more so in the field of human rights and civil liberties. Long may the European Convention on Human Rights speak to us, and especially to those, both here in the United Kingdom and across the world, who would diminish the human rights of others.
Lord Hendy (Lab)
My Lords, it is a pleasure to follow my friend, the noble Lord, Lord Cashman. Like him, I pay tribute to the noble Lord, Lord Alton, for his very powerful opening.
In a long career at the Bar, I have had the privilege of taking 11 cases to the European Court of Human Rights and assisting on two others. I can assure the noble Lord, Lord Lilley, that the word “paradise” is not one that immediately comes to mind when addressing the 17 judges in that court. All the cases I have been involved in have been trade union cases, most of them concerning the right to strike. Your Lordships may wonder how the right to strike could be protected by the European convention. It is simple: the European court found that the right to strike was an inherent aspect of freedom of association and the right to form and to join a trade union for the protection of one’s interests, which is spelt out in Article 11. The court derived it not by a process of a living instrument but simply in accordance with the usual law on the interpretation of treaties—Article 31 of the Vienna Convention on the Law of Treaties.
The issue now on the right to strike is no longer whether it exists or is protected by the convention but the legitimacy of national restrictions on it. In the years that have followed its establishment in the European court nearly a quarter of a century ago, many cases have been won and many cases have been lost, but recently there have been some very disturbing decisions by the European court upholding severe restrictions on the right to strike. I mention without discussion Barış v Turkey, Humpert v Germany, Kaya v Turkey and Almaz v Turkey.
Whatever the reasons for this line of authorities over the last couple of years, my instinct today is that, save in the most egregious cases, trade unions should avoid applications to the European court in strike cases. But unlike the noble Lord, Lord Faulks, the fact that I do not like a judgment, or a line of judgments, does not detract by one iota from my wholehearted support for the European convention and the whole vital edifice of international law covering working life and beyond.
As the noble Lord, Lord Alton, pointed out, this architecture was built on the corpses of tens of millions of people in the Second World War. It begins before the United Nations declaration, with the International Labour Organization Declaration of Philadelphia in 1944 —then the UN declaration in 1948, ILO convention 87 in 1949, convention 98 in 1950, and the European convention, also in 1950. That post-war momentum carried on into the 60s, with the European charter on social rights in 1961 and the two international covenants in 1966.
These instruments are of course autonomous, but the jurisdiction each generates informs that of the others, so that there is a consistency in international human rights standards. Neoliberalism may have ended the post-war consensus, and Hayek is now more influential than Keynes, but litigators, legislators and judges have a duty to uphold, deploy and be guided by these crucial instruments of civilisation and, in particular, the European convention.
Lord Balfe (Con)
My Lords, it is a pleasure to follow the noble Lord, Lord Hendy, and to take part in the debate of the noble Lord, Lord Alton, who gave a masterful introduction. I served for six years on the Council of Europe, and for two years I was the chair of a small sub-committee for the enforcement of European Court of Human Rights judgments. One of my Trivial Pursuit questions was: which country had failed the most applications to bring it into line? The answer I always got was Russia. I said no, so people said, “Well, it must be Turkey”. Actually, it was Italy. So the court does a valuable job.
I will add to the number of dates that have been mentioned. In 1966, Prime Minister Wilson accepted the jurisdiction of the court. That is also worth putting into the record because for 48 years, we have accepted its jurisdiction, and, in good times and bad, we have managed to survive.
I also had four years on the Venice Commission, which is another bit of international co-operation attached to the Council of Europe. For two years, I was its vice-chairman. I learned a lot about human rights because a lot of the Venice Commission references were concerned with one aspect or another of human rights. So I would also like the Government to reaffirm their commitment. I am sure they will, because that is the way I read the statements that have been made so far.
I will make two other observations. Where on earth is our Attorney-General? We never see him. He is the top law officer. I very much respect the noble Baroness who is here to reply to the debate, but, if ever there were a debate that needed the Government’s top lawyer, it is this one. I just make that point in passing.
I fully agree with a number of noble Lords who have said that the judges in the court, and the Council of Europe itself, have been busy with mission creep ever since it was set up. I recall that, when I went to Strasbourg as an elected MEP in 1979, the late John Silkin said to me, “Why do you want to join an outfit with no power?” I said to him, “John, put 435 politicians in a room and they’ll soon find it”. If you look at the reforms of the European Union—free movement, for instance, and all the rest—they date from that elected assembly.
I have one final point to make. The Government recently said that one of the problems was the
“exploitation of the
European Court of Human Rights
“by the human rights legal industry”.
The Government need to look at the legal industry. We need to find a way to do this because the judgment about chicken nuggets, which is often referred to, is a gross distortion of the work of the court. Maybe the Government could address this to see whether it is possible to issue some tighter guidance.
Lord Hannay of Chiswick (CB)
My Lords, the 75th anniversary of the European Convention on Human Rights would have merited a celebration, even if the noble Lord, Lord Alton, that tireless champion of human rights worldwide, had not given us an occasion to do so in this Chamber today. For that, he deserves the utmost thanks.
Three things about the convention must surely not be forgotten. First, while it was the work of the collective responsibility of many European parliamentarians and lawyers, there was a major input by the British contingent, many of them Conservative members, following the lead of Sir Winston Churchill, who played such an important role in the establishment and early years of the Council of Europe. I am saddened to see that this involvement seems now to be more a cause of shame than of pleasure.
Secondly, as many noble Lords have said, the convention was drawn up in the dark shadow of some of the worst crimes against humanity, including the Holocaust—crimes perpetrated in our own continent by our own citizens. Its aim was to ensure protection for all our citizens against crimes committed, often by their own Governments.
Thirdly, when, at the end of the 1980s, the Cold War drew to a close, the convention and its court were available to provide the countries of central and eastern Europe— including at the time the Russian Federation and Belarus—the freedoms and legal protection they had never previously enjoyed under Communist Party rule. These are three achievements to be proud of and to treasure, however irritated some may feel at some of its court’s rulings.
I am afraid that I am no lawyer but my father was one, and he taught me that hard cases make bad law. It is lamentable that now, after these 75 years of achievement, some politicians and parties in this country and elsewhere in Europe are sharply critical of the convention and its court. The main bone of contention is the impact on immigration cases, as all our Governments struggle with the challenges of illegal migration and asylum seekers. It is odd, and I find it hard to justify, that these challenges are often quantifiably far greater and more acute in other European countries than in our own, but we seem to be making quite a meal of it.
Many critics here seem to be blissfully unaware of the extent to which the European Convention on Human Rights underpins fundamentally important parts of our constitutional structures and international agreements—most prominently, the Good Friday agreement in Northern Ireland and some of the most valuable parts of the trade and co-operation agreement between the UK and the EU, in particular those dealing with justice and home affairs. These are clearly additional reasons for all, right across the political spectrum, to share the Government’s view that withdrawal cannot be contemplated. It would be good if more voices were raised to that effect.
I have one final point. Our previous Prime Minister, the right honourable Rishi Sunak, got into the habit of calling the Europe Court of Human Rights a “foreign court”. That lamentable, dog-whistle nomenclature is not even accurate, since the court has had many admirable British judges down the years. But in any case, the terminology of speaking of a foreign court is all too typical of populist politicians of many of the main parties. It would be good if it could be taken out and buried on this 75th anniversary.
Baroness Goudie (Lab)
My Lords, I thank the noble Lord, Lord Alton, for arranging to have this debate and for all his encouragement to me and many others in this House on human rights. I declare my interest as an ambassador working with the Georgetown Institute for Women, Peace and Security on a number of these issues. I thank also those who were kind enough to send me briefings for today.
I am pleased to speak on the 75th anniversary of the European Convention on Human Rights, a treaty that has safeguarded the dignity and freedom of more than 700 million people since 1950. The United Kingdom was among the first to ratify in 1951, in the aftermath of World War II, when nations were united to ensure that tyranny and injustice never prevailed again. The convention is more than a legal instrument; it is a moral compass. It enshrines fundamental freedoms and the rights to life, liberty, security and justice, and it protects individuals from discrimination, torture and unlawful imprisonment, ensuring equal protection under the law. This is not an abstract document; it has evolved to meet modern challenges while upholding its core mission—defending human dignity.
Its impact is evident particularly in Northern Ireland, where the Good Friday agreement enshrines the convention, ensuring human rights in devolved legislation. This safeguard has reinforced peace and provided independent remedies when state actions have failed. Article 6, guaranteeing a fair trial, has prevented miscarriages of justice. Landmark cases such as the exoneration of the Birmingham Six and Guildford Four illustrate how the convention has rectified grave wrongs and strengthened public trust in the judicial system.
Among other cases, in JD and A v the United Kingdom in 2019, a survivor of domestic abuse faced eviction after government housing benefit reforms failed to consider the need for a protected “panic room” under a government-sponsored safety scheme. The European court ruled that this violated Article 14, which protects against discrimination, highlighting the convention’s role in ensuring that policies do not disproportionately harm vulnerable women. In VCL and AN v the United Kingdom in 2021, two Vietnamese children trafficked into forced labour were arrested and imprisoned, despite the authorities knowing they were victims. The European court found that the UK had breached Article 4 on prohibition of slavery and Article 6 on right to a fair trial, emphasising that victims of trafficking should be protected and not prosecuted.
For those reasons, we must remain committed to the convention. Some have questioned whether to withdraw from this treaty. I caution against such thoughts, as doing so would undermine decades of progress and expose vulnerable populations to renewed injustices.
The convention’s influence extends beyond national borders, guiding legislative reforms, human rights education and justice in both post-conflict regions and modern societies. In Northern Ireland, adherence to the convention has reduced sectarian violence and safeguarded minority rights. In our courts, schools and communities, the convention has ensured that human rights are not abstract ideals but real, enforceable protections. When Governments are held to these high standards, society as a whole benefits, through fairer trials, inclusive education and transparent government.
Let us renew our commitment to this vital treaty. The European Convention on Human Rights remains as relevant today as it was 75 years ago. It is a cornerstone of democracy, peace and justice. I urge this House, and all who value fairness and human dignity, to stand united in its defence, ensuring that its protections guide us to a future where every person’s rights are upheld.
Baroness Hale of Richmond (CB)
My Lords, I, too, thank the noble Lord, Lord Alton, for initiating this debate and for his terrific speech in introducing it.
Perhaps I should declare an interest. I was privileged to be among Her Majesty’s judges sitting on the Woolsack to hear the Queen’s Speech in 1997, and I well remember the quiver of excitement with which we greeted the announcement that her Government intended to legislate to incorporate the convention into UK law. This was not, or not just, because of the intellectual excitement that a new set of legal toys would be given to us to play with; it was because we were going to be given the tools to protect the fundamental rights of some of the most vulnerable people in the country.
By then, it had become apparent that UK law did not always live up to the convention standards. Others have mentioned the vital part that the UK played in setting up the Council of Europe and the convention, but some have described this as the “export theory of human rights”: foreigners needed them because they did not have them; we did not need them because we already did, so the European convention was seen as embodying all the rights which UK people already enjoyed.
Unfortunately, this was not always the case. The UK was losing an average of 18 cases a year in the European court before the implementation of the Human Rights Act. Turning the convention rights into UK law meant that we judges could speak the same language and use the same concepts. Our law was enormously enriched thereby, and far fewer cases went to Strasbourg as a result and very few succeeded. I should remind your Lordships that it was the UK that invented the principle of constitutional interpretation that constitutional documents are a living tree, capable of development within its natural limits.
As others have reminded us, the convention has done a great deal of good for vulnerable and disadvantaged people such as children, families, people with mental disorders and disabilities, victims of crime, and people who suffer discrimination for no good reason but because of, for example, their sexuality, their ethnicity or the colour of their skin. It was the convention which insisted that children whose parents were not married to each other were entitled to the same family relationships as children whose parents were married. It was the convention which insisted that if the state wished to remove children from their homes to protect them from abuse or neglect, the process had to be fair to everybody involved, both children and their families. It was the convention which insisted that people with mental disorders and disabilities should not be deprived of their liberty without proper safeguards and the opportunity to challenge it. It was the convention which insisted there should be no discrimination in the enjoyment of the convention rights because of a person’s sex, race, colour or other characteristic such as sexuality or disability. The survivor of a same-sex relationship should have the same right to remain in the family home as did the survivor of an opposite-sex relationship.
That is the essential purpose of all human rights instruments, whether contained in international treaties such as the convention or in the written constitutions of almost every developed country in the world: to guard against the infringement of a person’s fundamental rights simply because they belong to a group which the majority does not like. As I ventured to say in a judgment given in this House when it was still the highest court in the land:
“Democracy values everyone equally even if the majority does not”.
To conclude, that is why it was especially shocking when this Parliament legislated to exclude a particular group of unpopular people from the protection of their human rights. Human rights are universal and should belong to everyone.
Lord Clement-Jones (LD)
My Lords, I declare an interest as an adviser to DLA Piper on AI policy and regulation. I thank the noble Lord, Lord Alton, for not only securing this debate but opening it with such an inspirational speech. What a huge pleasure it is to follow the noble and learned Baroness, Lady Hale. I agree with every word she said.
The new Council of Europe framework convention on artificial intelligence is another living demonstration that the principles of the European Convention on Human Rights are still highly relevant after 75 years. The AI framework convention does not seek to replace the ECHR but rather to extend its protections into the digital age. AI now permeates our daily lives, making decisions that affect our privacy, liberty and dignity. These systems can perpetuate discrimination, erode privacy and challenge fundamental freedoms in a way that demands new protections. Open for signature in September 2024, the AI framework convention is the first legally binding international instrument on AI, setting clear standards for risk assessment and impact management throughout the life cycle of AI systems.
The framework convention’s principles require transparency and oversight, ensuring that AI systems cannot operate as black boxes, making decisions that affect people’s lives without accountability. They require parties to adopt specific measures for identifying, assessing, preventing and mitigating risks posed by AI systems, and a specific human rights impact assessment has been developed. The convention recognises that, in the age of AI, protecting human rights requires more than individual remedies; it demands accessible and effective remedies for human rights violations resulting from AI systems. Rather than merely reacting to harms after they occur, the framework mandates consideration of society-scale effects before AI systems are deployed. I only wish, having heard what its director had to say on Tuesday, that our AI Security Institute had the same approach.
The framework convention was achieved through unprecedented consultation, involving not just the 46 member states of the Council of Europe but observer states, civil society, academia and industry representatives. Beyond European nations, it has attracted signatories including Israel, the United States—albeit under the previous Administration—and, most recently, Japan and Canada, in February this year.
However, a framework is only as good as its implementation, and this brings me to my central question to the Government. What is their plan? The Ministry of Justice’s Report to the Joint Committee on Human Rights on the Government’s Response to Human Rights Judgments 2023-24 said:
“Once the treaty is ratified and brought into effect in the UK, existing laws and measures to safeguard human rights from the risks of AI will be enhanced”.
How will existing UK law be amended to align with the framework convention? What additional resources and powers will be given to our regulatory bodies? What mechanisms will be put in place to monitor and assess the impact of AI systems on vulnerable groups? The convention offers us tools to prevent such problems, but only if we implement it effectively.
As we mark 75 years of the European Convention on Human Rights, we should remember that its enduring strength lies not just in its principles but in how nations have given those principles practical effect through domestic law and institutions. The UK has long been a leader in both human rights and technological innovation. I urge the Government to present a comprehensive implementation plan for the AI framework convention. Our response to this challenge will determine whether the digital age enhances or erodes our fundamental rights. I do not need to emphasise the immense power of big tech currently. We need to see this as a time when we are rising to meet new challenges with the same vision and commitment that created the European Convention on Human Rights, 75 years ago.
Lord Sandhurst (Con)
My Lords, this is a timely debate and I am grateful to the noble Lord, Lord Alton, for securing it. I declare an interest as a member of Justice, and indeed a past member of its council for some years.
The European Convention on Human Rights is a significant document. It embodies important values, but, equally, important and legitimate criticisms can be made of the jurisprudence that the court has generated. What the United Kingdom should do now and in the future has become a legitimate question. The concerns that I will express in this speech go not to the convention itself but to its misapplication by the courts and the implications for our constitution.
The Strasbourg court has the task of defining convention rights in practice. In performing that task, the court has treated the convention as a living instrument. That is, of itself, not a term in the treaty. It has used that to alter the scope of rights to give effect to changes in social attitudes—matters which in the United Kingdom are generally best left to Parliament.
I will give some examples. In Scoppola v Italy (No. 3), the Strasbourg court declared the statute which barred serving prisoners from voting at elections to be incompatible with the convention. It seems startling that the electoral franchise is not a matter on which the representatives of the general body of citizens have any say. Another example is the recent extraordinary climate change decision in KlimaSeniorinnen v Switzerland, which the Swiss Parliament, unsurprisingly, voted to ignore.
Articles 8 and 10 have been used to gag the press. In the case of Al-Skeini, the House of Lords excluded claims against the Army because the victims had not been within the jurisdiction of the United Kingdom. Strasbourg overturned that decision, but I suggest that the parties to the convention never intended that it should apply to warlike operations carried out by member states in foreign jurisdictions. Strasbourg has expanded the range of the convention and interpreted it in ways well beyond anything envisaged when it was made.
Issues of public policy involve choices between competing considerations—that is the essence of government and legislation; it is what our Parliament is there to decide. But where do we go? We are on the horns of a dilemma. The constitutional effects of leaving the convention would be serious. The United Kingdom would likely be expelled from the Council of Europe, which I do not endorse. Withdrawal would put the United Kingdom in breach of the Good Friday agreement, written into the Northern Ireland Act 1998, and none of us would want that. The convention is also baked into the EU-UK Trade and Cooperation Agreement—the TCA. The United Kingdom denouncing the ECHR would be grounds for the EU to terminate the part of the TCA on law enforcement and judicial co-operation in criminal matters, which would be a serious problem for us all.
However, something must be done. At a minimum, we must look again at the Human Rights Act. It should be amended to mitigate the constitutional problems to which it gives rise—but that is for another speech.
Lord Carter of Haslemere (CB)
My Lords, I too extend my congratulations to the noble Lord, Lord Alton, for his truly magnificent opening.
I declare an interest: I was a government lawyer for 34 years, and the ECHR often presented legal obstacles for the Government of the day, who I was advising. I understand, therefore, why some would like to withdraw from the ECHR.
One of the reasons often given for withdrawal is around Article 3, which, as interpreted by Strasbourg, prevents the UK sending failed asylum seekers, and others, back to their countries of origin where there are grounds for believing there is a risk that they will be ill-treated, however compelling the public interest reasons for removing them. This is the non-refoulement principle. I do not see how withdrawing from the ECHR would be the answer.
Politically, it would cause difficulties for the Belfast agreement, which assumes continued ECHR membership, and, as we have heard, it would risk ending criminal justice co-operation with the EU. Legally, in addition to many other international treaties that replicate the effect of Article 3, we are bound by customary international law arising from the “constant and uniform practice” of states, including the United Kingdom, complying with the non-refoulement principle, at least where the risk of severe ill-treatment is concerned. Leaving the ECHR to try to get around Article 3 would raise questions about our future compliance with customary international law.
There is no doubt that the Strasbourg court has used the living instrument doctrine in ways with which some contracting states may now disagree. A good example of that is the line of case law beginning with Al-Skeini, which has been referred to, on the extraterritorial effect of the convention. However, the answer to any perceived undesirable effects of the living instrument doctrine is not to leave the convention but to reform it, by bringing together contracting states to instigate reform, as was done recently with Protocol 15 on subsidiarity.
For example, where a specific piece of international law governs an issue, then perhaps the more general ECHR either should not apply or the Strasbourg court should be required to take account of it—which is a recognised principle of international law. This could be the case in respect of the Geneva conventions on armed conflict, the Paris Agreement on climate change and possibly even the refugee convention, where, unlike under Article 3 as interpreted by Strasbourg, narrow exceptions on grounds of security can apply in certain circumstances.
In addition, we must ensure our rich human rights heritage is preserved for future generations by a programme of civic and constitutional education on human rights and the balance to be struck between such rights and individual responsibilities, as recommended by Sir Peter Gross’s independent review of the Human Rights Act in 2021.
In conclusion, as we look at the increasing number of human rights abuses taking place around the world, which are totally blind to the rule of law, the scales are now weighted strongly in favour of continued membership of the ECHR, while seeking any reforms which will bring the convention more in line with what the contracting states may seek now in 2025.
Lord Griffiths of Burry Port (Lab)
My Lords, I am a member of the Parliamentary Assembly of the Council of Europe, and I am glad to begin my remarks by stating that bald fact. I say to the noble Lord, Lord Alton, and the noble and learned Baroness, Lady Hale, that, if there were tick boxes for their speeches, I would put a tick in and sit down because I do not want to say any more than that.
There was a debate recently in Strasbourg, entitled, rather quaintly, “Multiperspectivity in the field of journalism”, which was all about how journalists can see the same facts and report two entirely different stories. I want to apply it now to the House of Lords: people see the same facts and draw entirely different narratives from them. I have always felt a bit fragile in your Lordships’ House, since I have no political experience and certainly no legal experience. Consequently, I listen to the debate in order to hear where things stand.
And multiperspectivity has marked this debate. In the political sphere, all I can say to the noble Lord, Lord Lilley, is that it is such a relief to me that two rows behind him sits the noble Earl, Lord Dundee, whose remarks on the Council of Europe and the convention were so positive. He has served with such distinction in Europe, and he is widely honoured for the contribution he has made to its affairs. So, there is multiperspectivity straight in my eye as I look across the Chamber.
Similarly on the legal arguments, we had all those debates about immigration during the tenure of the last Government. From the government side, the noble Lord, Lord Murray—who is here—was obliged by convention not to disclose what legal advice the Government were receiving, but he did a doughty job at the Dispatch Box. It was always difficult for me as a non-lawyer to hear distinguished lawyers on each side of the argument and then for those of us who stand listening to know how to make the distinctions we needed to make.
I have just joined the Constitution Committee, so the future of Britain is under threat.
Lord Griffiths of Burry Port (Lab)
But the rule of law is what we have set ourselves as our first project. Last week, I had breakfast at the Supreme Court. Never have I been surrounded by so many stars in the galaxy as I was then. I made the point that the United Nations charter, the Universal Declaration of Human Rights and the European convention all have as Article 6 access to a fair trial.
I started my remarks on that occasion by stipulating that the architecture of my entire life has been built on the fact that, when I was five and a half years of age, a letter from my father’s solicitor to my mother indicated that, because she was the guilty party in their relationship, she should leave his client’s—my father’s—house within one week and take her children with her. My mother could not defend herself against that because she did not have two pennies to put together to get the legal counsel or support. In any case, the law was different then.
Out of that little exchange in the Supreme Court has come a magnificent response from one of the justices, who specialises in access to justice and brought out a report in 2016 about how to deal with people not having access to justice and wanting to have its recommendations implemented all these years later.
I look forward to the future—all those voices to listen to and all those cases to weigh up. I have to say that politicians should try a little harder, and the lawyers should try a little harder, to realise that not everybody is one of them.
Lord Trevethin and Oaksey (CB)
My Lords, it is a pleasure to follow the noble Lord. I wish to say a few words about the relationship between judicial protection of human rights and the rule of law and, in particular, about the way in which Parliament should respond to declarations of incompatibility in cases of constitutional importance.
In his classic work on The Rule of Law, Lord Bingham identified important distinctions between what one might call the primary articles, which confer an unqualified right to a defined outcome—not to be tortured and a right to a fair trial—and articles such as Article 8. Article 8 guarantees not a defined outcome but a respect for private and family life. It is subject to an important qualification, which Lord Bingham calls
“a community exception, a recognition that the rights of the individual may properly be restricted, in the interests of the community at large, if certain … conditions are satisfied”.
When judges are asked to give effect to and protect qualified rights, such as those conferred by Article 8, they are being asked to make an evaluation of the relevant, competing considerations, which necessarily involves moral and political analysis.
The danger is obvious. It is highlighted by a different chapter in Lord Bingham’s book, entitled “Law not Discretion”. There, he wrote:
“Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion”.
The balance is held, or should be held, by the fundamental constitutional principle that Parliament is sovereign. The Human Rights Act was carefully drafted in a way that reflects this. Judges are not able to strike down Acts of Parliament. Senior judges can make declarations of incompatibility. In most such cases, Parliament properly reacts by amending the legislation in question, in accordance with the court’s judgment. It is not obliged to do so and has not always done so.
As a matter of procedure, following the making of a declaration of incompatibility, Section 10 of the Act permits the Government to amend legislation by a remedial order, which will normally go through on the nod. The Act states, importantly, that this form of fast-track amendment is permissible only where the Minister considers that there are
“compelling reasons for proceeding under this section”.
I turn to a current matter, in which the Government propose to make a remedial order of this nature. In short summary, a few years ago the Supreme Court held in the Adams case that Mr Adams’s internment in the 1970s had been unlawful because the relevant certificate had been signed by the wrong Minister. This rather technical point, taken over 40 years late, opened an unappealing vista of many thousands of claims for compensation. A provision was introduced into the legacy Act with the support of all major parties, which—put colloquially—neutralised the Adams decision.
In 2024, a single judge of the Northern Ireland High Court made a declaration that this provision was incompatible with the claimant’s rights. That decision may have been right; it may well have been wrong. It has been the subject of penetrating—some might think lethal—criticism in a Policy Exchange paper written by Professor Ekins and Stephen Laws. The noble and learned Lord, Lord Hope, provided an illuminating preface, in which he supported the views expressed and explained precisely why it was inappropriate to respond to the declaration of incompatibility by making a remedial order pursuant to Section 10.
The Government appealed the Northern Ireland decision. It is beyond question that that appeal raised issues of fundamental constitutional importance. In summer 2024, the new Government withdrew the appeal. The reasons for that decision are obscure. Now it is proposed that a remedial order be made whose effect will be to remove the neutralising provision. As I have explained, this can lawfully be done only if there is a compelling reason to use the Section 10 fast-track procedure. There is plainly no such compelling reason. On the contrary, there are compelling reasons why the primary legislation should be amended in the usual way, which will give Parliament the opportunity to consider the matter carefully, as clearly needs to happen. If the Minister were able to update the House as to the Government’s plans in this respect, that would be of great interest.
Baroness Ludford (LD)
My Lords, I join others in warmly commending the noble Lord, Lord Alton, for securing this debate and for his excellent speech, which has set off a very valuable debate. The noble Lord is a true liberal, whatever his current location. It is unusual for a Member of the House of Lords to have the honour to chair the Joint Committee on Human Rights, but it is a tribute to him and an honour for this House that he does so. I should record my interest, which is in the register, as a vice-president to my friend the noble Baroness, Lady Kennedy, of the organisation Justice.
We have heard voices today calling for the UK to leave the European Convention on Human Rights, or at least to seek to change it or the Human Rights Act. Do we really want our country to be bracketed with outlaws such as Russia, Belarus and Hungary in ignoring and rubbishing human rights? That would be a regressive and deplorable step.
I agree with the comment by Amnesty—and I do not always—that the conduct of the current Russian Government should be a reminder to us all of our good fortune to live in a country with respect for the rule of law and which, in the main, complies with the rulings of independent courts. The UK leaving the convention would be exactly what Putin wants.
The convention, and the court system that it is attached to, forms a core part of the framework of the long-standing international alliance of states gathered together in the Council of Europe, dedicated to the pursuit of the common goals of human rights, democracy and the rule of law. I commend noble Lords, including my noble friend Lady Brinton, who take part in the Parliamentary Assembly of the Council of Europe, which I have never had the honour to do.
I point out to the noble Lord, Lord Lilley—I am grateful he is still in his place, as I know he has other commitments—that Commonwealth countries are not in the ECHR system because they are not, except for Malta, Cyprus and the UK, located in Europe.
Lord Lilley (Con)
I am grateful to the noble Baroness for replying to that point. The point is that they do not rely on an international agreement to provide very good human rights to their citizens. Why should we be different?
Baroness Ludford (LD)
I think answering that might set up another mini-debate, and I am not going to be tempted to go down that road.
For a major power such as us, a founding member of this European system, to leave the convention—and thus the Council of Europe, a point made by several noble Lords—would sow division and confusion among liberal states just when we need solidarity. It would demonstrate that the protection of individual rights against the excesses of state power is an unimportant and futile endeavour.
Indeed, our membership, along with that of all the other liberal democracies in Europe, of the council and its convention is part of the system of regional security that is so vital now. It creates the preconditions for peace through the promotion of democracy, the rule of law and human rights, and helps inoculate people and Governments against the pernicious propaganda coming out of Moscow and elsewhere.
The ECHR is not some remote, foreign product to be resisted as an imposition. That point was made by one noble Lord—I apologise, but I have forgotten who. We should celebrate the fact that the UK has played a pivotal role in not only creating but shaping the ECHR. I noted that several of the lawyers involved, such as the noble Lord, Lord Alton of Liverpool, seem to come from Merseyside. That must be a fertile source of human rights inspiration. Our judges continue to contribute to the future of the convention system and the wider protection of human rights. I hope that the Government will highlight the UK’s role and work to combat negative rhetoric, misrepresentation and misunderstanding.
The UK’s commitment to the ECHR, and more widely to the rule of law, boosts not only our international reputation but our attractiveness as a place to do business, by emphasising that individual and business rights are protected. Our commitment to the international rule of law underpins our global economic competitiveness and attractiveness as a destination for investment, which the Government are rightly emphasising. It is also part of the Government’s growth mission.
I was intrigued to read an article in the Times this week by the noble Lord, Lord Hague of Richmond. He is not in his place but, as this article was published, I feel able to comment on it without being discourteous. The article’s headline began, “I'm no fan but”, and such a “but” always puts one on notice. His declaration that
“Trump’s effect may be positive … prompting a startling realignment of ideas”
was a jolt, because I must confess that I can see nothing positive coming from President Trump. One of the positive nudges that the noble Lord felt was a result of President Trump was that the ECHR should be rewritten. He did not say how. If he meant that it would be rewritten only in the way that the noble Lord, Lord Carter, referred to, that might be sensible. We are all open to any useful reforms.
The noble Lord, Lord Hague, then confused me by stressing that these actions of Trump are
“a reminder that an effective democratic state is part of a moral order in which its policies should be anchored; that its reach and respect in the world rely on being able to distinguish right from wrong; that the abuse of great power brings resistance and rejection”.
I thoroughly agree with the noble Lord in those remarks. My contention would be that, far from rewriting the ECHR as a reaction to President Trump, we should treasure it all the more as guarding against the kind of developments that, sadly, we are seeing in the United States.
The Human Rights Act brought rights home, as has been said. It was one of the products of the talks on political and constitutional reform 30 years ago between Labour and the Liberal Democrats, known as the Cook-Maclennan talks—after Robin Cook and Robert Maclennan. I am very proud of that and other products. I was delighted to hear the noble and learned Baroness, Lady Hale, stress the value of the Human Rights Act.
We have heard that applications to Strasbourg have been on a general downward trend over the last 10 years. The Human Rights Act has contributed to that, as a lot of those cases have not gone to Strasbourg but have been settled domestically. In 2024, there were only three cases against the UK heard by the court, and only one found a violation. The victor was the Daily Mail, in a freedom of expression case. There were no interim measures or injunctions issued against the UK last year. This is a testament to the strength of our national system of human rights protections. One of the reasons for this harmonious state of affairs is that a productive dialogue has taken place between the Strasbourg and UK courts to deal with any tensions or disagreements. This was confirmed in the remarks of the noble and learned Lord, Lord Neuberger, and the noble and learned Baroness, Lady Hale.
For some people, no bill of rights, whether the European Convention or any other, will be acceptable in the UK system of a political constitution and parliamentary sovereignty. These arguments are always presented as concerns about democracy and democratic accountability. However, they almost always end in arguments for centralising power in the Executive. A lot of human rights challenges are to call the Executive to account. References to the court going too far as a reason to leave the convention system more generally are almost always based in choosing to emphasise the occasional controversial case where the speaker disagrees of the outcome.
Like the noble Lord, Lord Hannay, I emphasise that any upset to our relationship with the ECHR would affect the Belfast/Good Friday agreement, which is a crucial instrument. Under that agreement, the UK Government committed to the incorporation of the convention into Northern Irish law. Proposals to legislate for the continued application of the convention into Northern Irish law while withdrawing the UK as a whole from the convention are fundamentally flawed, and there is no practical way of legislating for partial implementation.
In addition, the UK is obliged under the Windsor Framework, following our withdrawal from the EU, to observe a non-diminution of rights as set out in the Belfast/Good Friday agreement. There are also, as the noble Lord, Lord Hannay, said, commitments in the trade and co-operation agreement to our continued adhesion to the ECHR. Any damage to our human rights observance could imperil the renewal of our data adequacy agreement, crucial to both business and law enforcement co-operation with the EU. For all these reasons, we should not imperil our positive engagement with the European convention and court but instead celebrate our great achievement and good fortune in creating it and sustaining it for 75 years.
Lord Wolfson of Tredegar (Con)
My Lords, it is a pleasure to speak for these Benches in this debate procured by the noble Lord, Lord Alton, whose work in the field of human rights needs no introduction. In fact, I remember that when I grew up in Liverpool—I do not know whether, in the eyes of the noble Baroness, Lady Ludford, that now makes me a human rights lawyer—the noble Lord, Lord Alton, was campaigning for the rights of Jews and Christians in the USSR to practise their religion. Therefore, I am especially grateful to him for today’s debate, in which we have had the privilege of hearing a number of very fine speeches, some of which have relied on the undoubted human right to push the boundaries of the advisory time limits.
Today’s debate is about not human rights per se but the European Convention on Human Rights, and the two are not the same. To make the obvious point, we had human rights in this country before we signed the European Convention on Human Rights, and many countries in this world that are not signatories to that convention still have and champion human rights. But the European Convention on Human Rights has a long history, and we played a central role in its inception. We were one of the original signatories and, as your Lordships have heard, we helped to draft it.
In 1951 two important things happened in the field of human rights in this country. First, we as a state signed the European Convention on Human Rights and, secondly, the noble Lord, Lord Alton, was born. We were one of the first states to ratify the convention, and since 1965 we have also accepted the jurisdiction of the Strasbourg court—the European Court of Human Rights. I am proud of our role in building the more just future for Europe from which we all benefit today.
I have mentioned the dates because they are important for context and background. When the ECHR was being drafted, Europe was still recovering from the horrors and destruction of the Second World War. It was only two years after the Nuremberg trials that in 1948 the United Nations promulgated its Universal Declaration of Human Rights, from which the ECHR’s founding principles flowed. I therefore suggest that it is appropriate that on the annunciator right now we have both the anniversary of the ECHR and the Holocaust Memorial Bill.
I want to move from the history to the ECHR today. I agree with a lot of what my noble friend Lord Lilley—who explained to me why he had to leave—said about the history. There is sometimes a pretence about the history—it is not all as people say it was—but let me move to today’s position.
There can be no doubt, as the noble and learned Lord, Lord Neuberger of Abbotsbury, explained, that the ECHR has led to legal advances. It has enabled judges to make innovative and expansive rulings in the fields of sexual equality, privacy and personal autonomy, to pick just a few topics. But we also have to accept that the approach of the ECHR is to entrust such lawmaking to a court—the Strasbourg court—that is accountable to no one. And while that might be good if you prefer its decisions to those that Governments might otherwise have made, it creates an obvious conflict between parliamentary democracy and an unelected court, especially when that court has gone on to adopt what I suggest to be a very expansive interpretation of the convention, as my noble friend Lord Murray of Blidworth explained.
Those conflicts range far and wide, and well beyond the scope of this speech, but you can get a sense of the issue from an analysis of 25 leading cases from that court, analysed by Professor Richard Ekins and others in an illuminating paper published by Policy Exchange. It is important to appreciate that it is not a bug; it is a feature. The lack of accountability of the European Court of Human Rights was precisely what made it appealing to those who set it up in the aftermath of fascism and Nazism. They saw the court as providing a check on elected Governments who might otherwise abuse their power. I understand that desire and I share it to an extent, but there are limits, and I wonder whether last year’s decision of the court in the Swiss climate change case has shown that we have reached those limits and perhaps gone beyond them.
Let me explain why. In 2021 the Swiss electorate rejected in a referendum an Act of the Swiss Parliament that called for a 30% reduction in emissions from 1990 levels by 2030. That Act, rejected by the electorate, was then replaced by an Act that provided for a staged reduction by 2050. That more moderate Act was approved by the Swiss people in a referendum. There is nothing in the convention about public health and certainly no mention of climate change, but that did not stand in the way of the Strasbourg court, which held that the Article 8 right to private and family life required Governments to take what it called effective measures to combat climate change, and those measures had to be consistent with the views of the UN Intergovernmental Panel on Climate Change.
That of course is the answer to the oft-made challenge, first made today by the noble Baroness, Lady Kennedy of The Shaws: “Which rights don’t you like?”. I like them all as drafted, but not as interpreted expansively.
The court held in that case that Swiss law was inconsistent with the convention. What about the fact that the Swiss people and their parliament had twice had a say in referenda? The court said that
“democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law”.
I give way to no one when it comes to the rule of law, but the rule of law does not require judges to have a roving commission over whole areas of contested and contestable national public policy in complete disregard of the expressed wishes of both parliaments and the people. As our judges on the court have been mentioned, I should add that the UK judge on the court wrote a powerful and principled dissent to this decision that repays careful reading.
The question is not whether the decision is right or wrong on the facts. It is not about whether climate change is real—it is—or whether we should take it seriously; we should. It is about whether and how we make laws on such issues in a democracy. As my noble friend Lord Sandhurst pointed out, in cases where you have contested issues of public policy and you have to balance a lot of factors, the effect of the court’s decision is that these arrangements are arrogated only to the court. Not only must the Swiss change their statute but it seems that they must also take steps to ensure that the changed statute is not itself rejected in a referendum by voters. To pick up the point made by the noble Baroness, Lady Ludford, this does not centralise power in the Executive; it centralises power in a court—contrary to the expressed wishes, in that case, of both the parliament and the people. Nor, I suggest, is it consistent with the rule of law. Some of the principles of the rule of law are that it must be stable, clear, publicly accessible and not retrospective. The decision of the Strasbourg court in that case is none of those things. As the UK judge said in his dissent, his
“disagreement is of a more fundamental nature and … goes to the very heart of the role of the Court within the Convention system”.
He ended,
“I fear that in this judgment the majority has gone beyond what it is legitimate and permissible for this Court to do and, unfortunately, in doing so, may well have achieved exactly the opposite effect to what was intended”.
Those of us who have concerns about the approach of the Strasbourg court have those concerns because we believe in human rights, not because we have concerns about human rights.
Our party has made a powerful and lasting contribution to law and justice in Europe and beyond. We remain committed to those values of law and justice, but we need to recognise that the Europe that gave birth to the convention is a Europe of the past. We need new international or improved agreements—as the noble Lord, Lord Carter, identified—that are fit for the present challenges we face and appropriate for those of the future.
I know that over the past couple of years we had long and heated debates in this House on immigration policy. The fact is that over the past years our ability to manage immigration has been hindered by interpretations of international laws, including the ECHR, which are a long way from the intentions of the states when they signed up to those treaties and conventions. I may not be the only one who has had a little wry smile over the past months at hearing echoes of what I used to say from that Dispatch Box repeated in press summaries from No. 10. Things look different when you are in government, as I think the party opposite is now finding. I accept that press reporting of judgments is often exaggerated and sometimes plain wrong, but those who deny that there is a problem at all are also wrong.
That is why we tabled an amendment in the other place to the Border Security, Asylum and Immigration Bill that would disapply the Human Rights Act from immigration matters. It is ultimately important that Parliament and Ministers have effective control over our borders.
I will end on a note where we all agree. In a world where the threat of totalitarianism remains, we must not disavow our moral duty to promote justice. That principled stand is entirely compatible with work, perhaps across the House, to ensure that our international agreements remain appropriate for the challenges of today and the future. I again congratulate the noble Lord, Lord Alton, on initiating this debate and wish him many more years of fighting, in good health, for the causes close to his heart, both in this House and outside it.
The Minister of State, Foreign, Commonwealth and Development Office (Baroness Chapman of Darlington) (Lab)
My Lords, I thank the noble Lord, Lord Wolfson, for that speech. It is good to see him, and I am very sorry to have learned of the death of his father recently—may his memory be a blessing. I enjoyed the noble Lord’s speech very much. I did not agree with some of it, but he is always entertaining and speaks with passion.
I would gently say on the issue of immigration, about which I argued with very many Ministers over the 14 years we enjoyed in opposition, that the previous Government completely lost control of the system. They had an expensive distraction with Rwanda. There was no co-ordination across Whitehall and minimal engagement with foreign Governments on the topic. I wonder what some of the Ministers were doing: they made speeches about immigration but then did precious little to deal with the problem. What the noble Lord says about the ECHR may or may not be right but there were so many other things that could and should have been done that were not, so we have plenty to do when it comes to tackling immigration before we get to ECHR reform.
Having said all that, I want to thank the noble Lord, Lord Alton. He has inspired many people, inside and outside this Chamber, over very many years. I thought he set out his argument most convincingly and I thank him for securing this debate.
I begin by completely reinforcing the assertion from the noble Lord, Lord Lilley, that we always start with history; yes, we often do. I will begin not as far back as the right reverend Prelate the Bishop of St Albans with the 10 commandments, but with March 1951 when the UK became the first country to ratify the European Convention on Human Rights—the ECHR. Signed in Rome on 4 November 1950, it came into force in the United Kingdom in 1953. Although some commentators would have us believe that the ECHR was imposed on us unwillingly by our neighbours, this is not the case.
In response to the horrors of the Second World War, which engulfed the world in a generation, Winston Churchill was a leading proponent of the Council of Europe, which made this convention the first order of business. Indeed, I know that the Lord Speaker and many of my noble colleagues recently commemorated the historic moment when the treaty that led to the creation of the Council of Europe was signed at St James’s Palace in 1949. I recognise the contributions made by Members of both Houses who serve on the delegation to the Parliamentary Assembly of the Council of Europe under the able chairmanship of the noble Lord, Lord Touhig.
Furthermore, a British Conservative MP and lawyer, David Maxwell Fyfe, played a leading role in drafting the convention. The pioneering Labour Foreign Secretary Ernest Bevin was active in shaping the convention, and the first president of the European Court of Human Rights was British too, Arnold McNair—Lord McNair.
The Government are proud of Britain’s role in the formation of the European Convention on Human Rights, and of all that it has made possible for our individual rights and freedoms in the decades since. That spans everything from forming an important pillar of the devolution settlements to underpinning guarantees in the Belfast/Good Friday agreement, and supporting the safety and security of British citizens by facilitating cross-border law enforcement and judicial co-operation in the trade and co-operation agreement.
Yet so much of what the ECHR does for us goes unsung, precisely because so much of it sounds so abstract. So, noble Lords have today shone a light on some of the ways it has made a difference to the lives of people across our country for decades by reminding us of some of those stories. My noble friend Lady Chakrabarti explained movingly the impact of the convention on victims of sexual violence. My noble friends Lady Kennedy and Lady Goudie, the noble Lord, Lord Sandhurst, and the noble Baroness, Lady Ludford, reminded us how central the ECHR is to stability in Northern Ireland. My noble friend Lord Rook spoke about freedom of religion and belief. The noble Lord, Lord Cashman, spoke about how the ECHR has literally changed his life. My noble friend Lord Hendy reminded us of the impact of the convention on trade union activity.
We also considered the abolition of corporal punishment in the UK. In 1982, it was an ECHR ruling that put an end to schoolchildren being beaten against their parents’ wishes and paved the way for the eventual abolition of corporal punishment in all state and private schools in the UK. There is also the status of homosexuality in Northern Ireland. Male homosexual acts were a crime in Northern Ireland until 1982, yet a human rights case brought to the ECHR by a gay rights activist from Belfast argued that the criminal law in Northern Ireland amounted to an unjustified interference with his right to respect for his private life. It was rightly decriminalised.
Then there is the duty of states to protect the right to life. The families of the 97 football fans who lost their lives in the 1989 Hillsborough disaster relied on that right while they campaigned for the truth to obtain a new inquest, which concluded that the fans were unlawfully killed. There is also the lifting of the ban on LGBT people joining the military, following a landmark case in 2000 brought by two British servicemen who had been dismissed from the army simply for being gay. The law changed, allowing members of the Armed Forces to be open about their sexuality.
Then there is the protection of religious belief in the workplace. When an employee of British Airways wore a small cross around her neck as a sign of her religious faith, she was suspended from work without pay because the cross violated its uniform policy. Yet, in 2013, the ECHR ruled that this was an unreasonable interference with this woman’s right to freedom of religion, leading to a change in relevant standards in the UK.
Indeed, the ECHR continues to provide protections to the rights of British citizens at home and abroad. Only last month the court ruled that the Cypriot authorities had failed a British woman who alleged that she had suffered horrific sexual violence in Cyprus in 2019, finding that there had been a lack of effective investigation and a violation of her right to respect for a private and family life.
These stories remind us of just a few of the ways our country and our people have benefited from the protections of the European Court of Human Rights over the years. It is important that, as well as applying the law consistently and working in partnership with others well beyond our continent, we tell these stories.
Sadly, there are some who seek to paint a picture of the UK constantly under attack by the European Court of Human Rights. I am not saying that that is what the noble Lord opposite did today—his comments were considered—but it is worth noting too that the UK has one of the lowest rates of applications to the court per million inhabitants, as the noble Lord, Lord Thomas, said. Last year, only one adverse judgment was given, finding one violation against the UK.
The Human Rights Act, which a Labour Government put in place, gives effect to the ECHR in UK law. It was wonderful to hear the recollection from the noble and learned Baroness, Lady Hale, of the Queen’s Speech that made this announcement. It is an important part of our constitutional arrangements and fundamental to human rights protections in the UK.
Of course, no organisation is perfect; neither the ECHR nor the European Court of Human Rights is static or frozen in time. The ECHR is a living instrument that evolves in response to emerging challenges and challenging times. The European Court of Human Rights has shown itself to be open to change. Indeed, during the UK’s presidency in 2012, Council of Europe member states adopted a substantial package of reform measures, and only last year, the European Court of Human Rights introduced more fairness and accountability into its approach to interim measures following consultation with member states. There is one accepted principle of dialogue between national courts and the European Court of Human Rights, through which the UK continues to influence the direction and impact of the ECHR. Our respect for the rule of law domestically and internationally is profound, as we are demonstrating through our actions. That is more important than ever at a time where we have been dealt a stark reminder of what is at stake for all of us.
The noble Earl, Lord Dundee, asked about development and education. I can confirm our commitment and support along the lines of his comments, and partnerships in higher education. He put a helpful question. The noble Lord, Lord Clement-Jones, invited me to talk about AI regulation. He will forgive me if I do not, but I am sure that a DSIT Minister will be along very shortly and will be happy to take his questions on that.
There are things that we all need for a good life: security, prosperity, equality, human rights and the rule of law. I am afraid I differ from the noble Lord, Lord Faulks, but I agree with many noble Lords, including the noble Lords, Lord Griffiths, Lord Carter, Lord Balfe, Lord Hannay, the noble Baroness, Lady Ludford, and the noble and learned Lord, Lord Neuberger. As my right honourable friend the Prime Minister said, and as the noble Lord, Lord Jay, said we should, this Government are firmly committed to the European Convention on Human Rights and we will never leave it. As my right honourable friend the Foreign Secretary has said, quoting former Labour Foreign Secretary, Robin Cook, it is self-evident that a world where every individual’s rights are respected is a world that will be more peaceful, and where Britain will be more prosperous and more secure.
As we reset and deepen our relationships with friends across Europe and beyond to help us face the challenges and opportunities of our times, in this 75th year of the European Convention on Human Rights, we welcome this chance to reflect on all we have achieved and to look forward to what needs to come next. We are a Government with a progressive, realistic outlook, meeting the world as it is and working towards how we want it to be in the months and years ahead. We look forward to the celebrations in Strasbourg in November.
Lord Alton of Liverpool (CB)
My Lords, the noble Lord, Lord Wolfson, referred to his childhood, when I was his family’s constituency Member of Parliament in Liverpool. The noble Baroness, Lady Chapman, in her reply to the debate referred to something which deeply affected me during my time as a Member of Parliament; I never expected to have to visit families whose children had died at a football match, as they had done at Hillsborough.
So I have been enormously grateful for the effect of the European convention in helping to shift the law, and to the Government for the commitment they gave at the general election to enact the so-called Hillsborough law. It is an issue the Joint Committee on Human Rights has engaged with. Indeed, we recently published correspondence between the committee and the Government on the duty of candour. It is a good example of how events that take place here in our own jurisdiction can have implications elsewhere, and of how they can be affected from jurisdiction to jurisdiction, and from person to person.
Some very kind words have been said by noble Lords today, not least about my longevity. I am grateful to the noble Lord, Lord Wolfson, and to the noble Lord, Lord Rook, who said that he hoped one day to grow up to be like me. I do not wish that on him or anybody else. I feel a bit like Methuselah at the end of today’s debate.
The noble Lord, Lord Griffiths of Burry Port, for whom I have great fondness and admiration, made a very good speech about why we should keep our feet firmly on the ground and never lose sight of the human impact of the decisions that we make. He told us that he had been to the Supreme Court and felt as though he had been surrounded by stars in the galaxy. You do not need to go all the way to the Supreme Court to feel as though you are surrounded by stars in the galaxy. I pay particular tribute to some of the distinguished and celebrated Peers who have spoken in today’s debate. These have been wise voices, and we would be foolish not to study carefully what has been said to us from all sides of the argument. This debate has been worthy of the anniversary, but also worthy of your Lordships’ House.
Obviously, I will not try to respond to every speech, so I will be brief. Reference was made to Article 3. My noble friend Lord Carter was right that even if we did not have the ECHR, the 1951 convention on the treatment of refugees would still be in place. We were also cautioned by the noble Lord, Lord Balfe, the noble Baroness, Lady Ludford, and others about the dangers of building a whole argument on one or two cases—such as the so-called chicken nuggets case, which was referred to. Noble Lords should go away and read Joshua Rozenberg’s article this week, where he reminds us that in that case, a lower-tier tribunal got it wrong and an upper-tier tribunal got it right. He writes that the argument presented in that case will not prevent the deportation of someone who may be here illegally and therefore should not be resident in the United Kingdom. So let us not build a case for total deconstruction on cases such as that one. Again, a noble Lord reminded us—I think it was my noble friend Lord Hannay—that hard cases make bad law.
When you start to unravel and disrupt, it carries consequences, but that is not an argument against reform. I take the arguments that have been made today, particularly from the Conservative Benches, that this is not a static instrument which is incapable of reform. Things such as the Swiss case are for the Joint Committee on Human Rights to go back and look at and take evidence over. I hope that the noble Lord, Lord Murray, and I will agree on that, and will find ways for us to look at that kind of judgment and decide whether we are going too far in some circumstances—but that should not become an argument for the destruction of the European Convention on Human Rights. Confronted in our own generation by a new breed of dictators who again threaten the foundations of democracy, it would be sheer defeatism and an act of vandalism to abandon the legacy that has been entrusted to us.
I renew my thanks to everyone who has participated in today’s debate and, in closing this Cross-Bench debate marking the 75th anniversary of the European Convention on Human Rights, I thank all those who have made such excellent contributions in your Lordships’ House.