The European Convention on Human Rights

[nw1]

Mod Note: #1 - #22 originally in this thread.

Something like 'that's not a good look' seems to get thrown up whenever there are suggestions about trying to change the asylum system, but I'm not sure it's a particularly good argument (Related to that, we see the same kind of argument used against suggestions that we should stop following the ECHR and use some different human rights framework instead)

Why should we get out of the ECHR though? That just sounds like taking a dogmatic "everything from continental Europe is bad and we need to get rid of it" line and to be quite honest this sort of talk is not helpful and just smacks of anti-Europe (the continent, not the EU) fundamentalism. We need to improve relations with continental countries and recognise that we, as an Old World Western nation, have a lot in common with the Continent, including, I would hope, a similar attitude to human rights.

And we are part of the continent of Europe, despite the geographically-illiterate often claiming otherwise for political reasons.

 

[DynamicSpirit]

Why should we get out of the ECHR though?

Because - to my mind - it's an outdated framework that falsely divorces rights from individual responsibilities, takes no account of today's ease of travel or of how criminals or illegal immigrants can abuse the human rights framework to evade responsibility for their actions, and has grown in a way that often unnecessarily restricts Governments in ways that go way beyond protecting basic human rights.

That just sounds like taking a dogmatic "everything from continental Europe is bad and we need to get rid of it" line and to be quite honest this sort of talk is not helpful and just smacks of anti-Europe (the continent, not the EU) fundamentalism. We need to improve relations with continental countries and recognise that we, as an Old World Western nation, have a lot in common with the Continent, including, I would hope, a similar attitude to human rights.

And we are part of the continent of Europe, despite the geographically-illiterate often claiming otherwise for political reasons.

Eh? Where on Earth did I mention Europe in my post? I oppose the ECHR, as currently constituted, because I don't think it's fit for purpose. Nothing more, nothing less. That has nothing whatsoever to do with which countries it's associated with. If European countries (or the EU) were to come up with a new human rights framework that is fit for purpose, then I'd be delighted. Methinks you're presuming some kind of anti-European prejudice that simply isn't there.

 

[nw1]

Because - to my mind - it's an outdated framework that falsely divorces rights from individual responsibilities, takes no account of today's ease of travel or of how criminals or illegal immigrants can abuse the human rights framework to evade responsibility for their actions, and has grown in a way that often unnecessarily restricts Governments in ways that go way beyond protecting basic human rights.


Eh? Where on Earth did I mention Europe in my post? I oppose the ECHR, as currently constituted, because I don't think it's fit for purpose. Nothing more, nothing less. That has nothing whatsoever to do with which countries it's associated with. If European countries (or the EU) were to come up with a new human rights framework that is fit for purpose, then I'd be delighted. Methinks you're presuming some kind of anti-European prejudice that simply isn't there.

I wasn't referring to you specifically, it was rather a case that I have, in general, observed amongst people a particular group of right-wing opinions that often go together and I find profoundly irritating. "ECHR - too soft on criminals - not made here [as in the UK]" often, IMX, tends to go together with anti-European attitudes (and not just the EU, but rather anything originating from the continent) as well as anti-immigration attitudes and a perception that the UK is "too soft" on law and order (which IMO it mostly isn't, aside from a few things such as identity theft, but that's something for another thread...)

We've had, IMO, quite enough movement to the right in the past 13 years, I'd like to see more movement in the other direction on a whole range of matters from a new government to balance things out again.

 

[DynamicSpirit]

I wasn't referring to you specifically, it was rather a case that I have, in general, observed amongst people a particular group of right-wing opinions that often go together and I find profoundly irritating. "ECHR - too soft on criminals - not made here [as in the UK]" often, IMX, tends to go together with anti-European attitudes (and not just the EU, but rather anything originating from the continent) as well as anti-immigration attitudes and a perception that the UK is "too soft" on law and order (which IMO it mostly isn't, aside from a few things such as identity theft, but that's something for another thread...)

I think you may be getting the causation the wrong way round. Off the top of my head I can't think of any senior politician or any mainstream movement that is on record as opposing the current human rights framework just because it's somehow associated with Europe/the EU: To do so would be patently absurd (although that sadly doesn't seem to stop many on the left from believing and propagating that absurdity). However if (like myself, and like many on the right) you view the human rights framework/the ECHR as not fit for purpose and as profoundly damaging to the UK, then it's almost inevitable that you'll quickly notice that the EU and the supranational structures around the ECHR pose a huge obstacle to any meaningful reform of the ECHR, and therefore you're likely to be motivated to become more pro-Brexit as a result. That's the more likely reason why you'd see a correlation between pro-Brexit views and anti-ECHR views.

 

[The Ham]

I think you may be getting the causation the wrong way round. Off the top of my head I can't think of any senior politician or any mainstream movement that is on record as opposing the current human rights framework just because it's somehow associated with Europe/the EU: To do so would be patently absurd (although that sadly doesn't seem to stop many on the left from believing and propagating that absurdity). However if (like myself, and like many on the right) you view the human rights framework/the ECHR as not fit for purpose and as profoundly damaging to the UK, then it's almost inevitable that you'll quickly notice that the EU and the supranational structures around the ECHR pose a huge obstacle to any meaningful reform of the ECHR, and therefore you're likely to be motivated to become more pro-Brexit as a result. That's the more likely reason why you'd see a correlation between pro-Brexit views and anti-ECHR views.

The slight issue is that often when there's talk of replacement or withdrawal there are free of any details as to what the new thing would look like.

Given how diverse the options were on Brexit (No deal, Norway, Canada, etc.) anyone who supports the removal of ECHR would be wise to be careful to understand what the various factions are actually calling for - as they could find that they get something different to what they want.

That's not too say you haven't, it's just a convenient post to highlight this point.

 

[Enthusiast]

The slight issue is that often when there's talk of replacement or withdrawal there are free of any details as to what the new thing would look like.

Does there have to be a "new thing"? After all, there wasn't an "old thing" before the ECHR was introduced. The UK has its own Human Rights Act (which in many respects mimics the ECHR). Isn't that enough?

 

[Gloster]

Does there have to be a "new thing"? After all, there wasn't an "old thing" before the ECHR was introduced. The UK has its own Human Rights Act (which in many respects mimics the ECHR). Isn't that enough?

If I have understood it correctly, the UK Human Rights Act effectively requires the UK to abide by the ECHR. If we are going to leave the ECHR and go our own way, this would have to be repealed. Furthermore, I am quite certain that the new British Rights Act would ‘to clarify the rights the British people want’ have subtle differences of phrasing and emphasis resulting in a reduction in the rights to strike, to free speech, to peaceful protest, etc.

To take an hypothetical example: the right to strike might be reduced while the right to work might be strengthened. Careful phrasing of the new clauses could result in a ban on rail strikes because they prevent people exercising their right to work, while the right to strike is qualified.

I have no doubt that those who would have the most influence on the writing of the new British Rights Bill would be those who have the most influence and money. As a general rule they do not want their continued earnings or influence to be limited by the rights of the general public and will do their utmost to ensure that they get their way with the new Act. They can’t go too far, but they can afford to get skilled lawyers to suggest minor changes to the original that would, in due course and often in combination with other parts of the Act, place considerable restrictions on the freedoms that we enjoy. Freedom is for all, not just me.

Be careful what you wish for.

 

[The Ham]

If I have understood it correctly, the UK Human Rights Act effectively requires the UK to abide by the ECHR. If we are going to leave the ECHR and go our own way, this would have to be repealed. Furthermore, I am quite certain that the new British Rights Act would ‘to clarify the rights the British people want’ have subtle differences of phrasing and emphasis resulting in a reduction in the rights to strike, to free speech, to peaceful protest, etc.

To take an hypothetical example: the right to strike might be reduced while the right to work might be strengthened. Careful phrasing of the new clauses could result in a ban on rail strikes because they prevent people exercising their right to work, while the right to strike is qualified.

I have no doubt that those who would have the most influence on the writing of the new British Rights Bill would be those who have the most influence and money. As a general rule they do not want their continued earnings or influence to be limited by the rights of the general public and will do their utmost to ensure that they get their way with the new Act. They can’t go too far, but they can afford to get skilled lawyers to suggest minor changes to the original that would, in due course and often in combination with other parts of the Act, place considerable restrictions on the freedoms that we enjoy. Freedom is for all, not just me.

Be careful what you wish for.

Indeed.

To take an example from a previous thing which was being called for by a group of people; those with money can get access to EU citizenship if they find that Brexit wasn't as good for them as they may have liked:

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Explore the countries that offer residency and citizenship programs. Compare all the programs and choose the one that fits your needs.

getgoldenvisa.com

Arguably if they are an EU citizen and they don't like something in the "new" bill of rights that they may be calling for the UK to have, they can always get some protection from their citizenship of the EU which retains the ECHR - which those from the UK without money (or don't happen to have the right parents or grandparents) don't have access to.

They may not be the liberal elite, however I'm not sure I trust the non liberal elite either - arguably at least the liberal elite "should" want things which are socially progressive so more people should benefit from what they want.

Everyone is created equal, it's just that some are more equal than others.

 

[DynamicSpirit]

The slight issue is that often when there's talk of replacement or withdrawal there are free of any details as to what the new thing would look like.

Given how diverse the options were on Brexit (No deal, Norway, Canada, etc.) anyone who supports the removal of ECHR would be wise to be careful to understand what the various factions are actually calling for - as they could find that they get something different to what they want.

That's not too say you haven't, it's just a convenient post to highlight this point.

That's a fair point. It probably wouldn't be a good idea to set about trying to repeal the UK Human Rights Act/withdraw from the ECHR/etc. without first having a very good idea of what should replace it. For my part, I want to see something that broadly keeps many of the same individual rights in the ECHR, but which presents them as something we all have a responsibility for in how we treat people, rather than something that only Governments hand down and people being no more than passive recipients of rights. I'd want explicit provision that if you deliberately abuse someone else's human rights, then you automatically forfeit your own right to claim those rights for yourself. And I'd also remove the stuff that is genuinely controversial (such as the ban on the death penalty - which seems more like interference in countries' justice systems rather than a genuine universal human right).

Going back to the thread topic of the Conservative Party, I think one problem that your comments raise is, on the whole, the Tory politicians who want to withdraw from the ECHR aren't seriously thinking about what kind of ethical framework is appropriate today: They just want to get rid of the particular clauses in the ECHR that happen to be causing problems right at the moment, and they perceive withdrawing from the EHCR as the best way to do that. The problem to my mind is, that's likely to lead to a replacement that's not really any long term improvement on the ECHR. It'll just be, ECHR-with-bits-removed.

== Doublepost prevention - post automatically merged: 17 Aug 2023 ==

Does there have to be a "new thing"? After all, there wasn't an "old thing" before the ECHR was introduced.

I would say, yes. To my mind, there is something about human rights that goes beyond day-to-day politics and the various laws and changes that are involved in running a country, so I think it is important to have some kind of transnational standard that democratic Governments sign up to that says, whatever laws we enact, we recognise that these fundamental principles should always apply in how we treat people.

 

[najaB]

And I'd also remove the stuff that is genuinely controversial (such as the ban on the death penalty - which seems more like interference in countries' justice systems rather than a genuine universal human right).

I think the right to life is probably the most fundamental human right of all!

 

[DynamicSpirit]

I think the right to life is probably the most fundamental human right of all!

There's a huge difference between the right not to be arbitrarily killed when you're walking down the street (which I would say is how any 'right to life' should really be understood) and being punished for crimes that you've committed - especially if those crimes involved knowingly destroying other people's lives.

 

[najaB]

There's a huge difference between the right not to be arbitrarily killed when you're walking down the street (which I would say is how any 'right to life' should really be understood) and being punished for crimes that you've committed - especially if those crimes involved knowingly destroying other people's lives.

No there isn't. Rights are absolute. You either have a right to life or you don't.

While the state may temporarily curtail those rights as punishment, the death penalty is, famously, quite permanent.

 

[birchesgreen]

Interesting there has just been a news story about someone wrongly convicted for a serious crime that did a long spell in prison. Would you really want to give the state the power to take your life away?

 

[ainsworth74]

Would you really want to give the state the power to take your life away?

Apparently? I don't understand it really. The State gets things wrong more frequently than would really be considered ideal. Giving it the ability to kill seems quite chilling to me. But each to their own I guess.

But anyway there does appear to be a somewhat fundamental misunderstanding what the ECHR is for and what it is about. The ECHR is entirely about protecting the individual (who those on the right are usually most keen to protect ironically!) from the power of the State. The responsibilities of individuals to each other has nothing to do with it. It's to make sure that no matter who you are, where you've come from, what you've done, what your colour, creed or anything else happens to be, you will be protected from the power of the State.

Regulating the interactions of individual behaviour is not the purpose of the ECHR. It was born from the fires of World War 2 to make sure that no Government would ever again be able to go around and murder, torture or otherwise dehumanise people that lived within it's reaches. It is to make sure that if ever the awesome power of the State is directed against you that you have protections from that power.

It makes sure that the State cannot kill you unlawfully, that is if it is to kill you it must be able to justify that action. That if you do die in State custody that the state has to investigate the circumstances that led to your death. It ensures that that the State has no ability to deprive someone of their life. I cannot understand why anyone would want to weaken that provision to make it easier for the State to kill. We've literally just had a case where an innocent man was imprisoned for seventeen years. The State has repeatedly demonstrated now and when it was first abolished that it cannot be trusted to get it right and only kill the guilty. I don't know about anyone else but my desire for vengeance against criminals is not such that I'm willing to handwave away the risk that the State gets it wrong and kills an innocent person. After all it could be me, or you.

I would also quibble with the idea that this is an antiquated notion that is out of step with modern reality. Article 2 as written provided an explicit carve out for the death penalty. It was only Protocol 6 in 1985 which determined it would only be permitted in times of war and Protocol 13 in 2003 which prevented it in all circumstances. 2003 might be twenty years ago now but let's not pretend that Article 2 is some dusty piece of old law.

Or how about Article 3 that makes sure that the State cannot torture you, it cannot subject you to inhuman or degrading treatment. The Police cannot just rough you up a bit if they think that you're guilty but have the temerity to protest you innocence. Article 6 which grants you the right to fair trial, that you hearing must be carried out by an independent and impartial court which is held in public. That there must be a presumption of innocence, that you must have access to legal advice as well as time and resources to prepare your legal defence. That they should not be unnecessary or excessive delays. Making sure that the State cannot just determine that you're guilty and arrange a trial with a judge who will make the decision the State wants and, even if it can't sort that, makes sure that you just languish in prison waiting trail for an indeterminate period of time. And so on and so on.

I find it crackers that people seem to think that, for some reason, the ECHR is an outdated document or somehow infringes on our rights. The ECHR is a living thing which develops along with society and protects us, all of us, from the power of the State. Both now and in the future.

So far all we've heard, in this conversation, is that it's bit annoying that the ECHR prevents the State from killing people with the death penalty and that it is "profoundly damaging to the UK". I have yet to hear a cogent explanation for how it is profoundly damaging the UK nor indeed what other rights, that is to say protections for the individual against the State, that are causing that damage and should therefore be removed.

 

[Peterthegreat]

Apparently? I don't understand it really. The State gets things wrong more frequently than would really be considered ideal. Giving it the ability to kill seems quite chilling to me. But each to their own I guess.

But anyway there does appear to be a somewhat fundamental misunderstanding what the ECHR is for and what it is about. The ECHR is entirely about protecting the individual (who those on the right are usually most keen to protect ironically!) from the power of the State. The responsibilities of individuals to each other has nothing to do with it. It's to make sure that no matter who you are, where you've come from, what you've done, what your colour, creed or anything else happens to be, you will be protected from the power of the State.

Regulating the interactions of individual behaviour is not the purpose of the ECHR. It was born from the fires of World War 2 to make sure that no Government would ever again be able to go around and murder, torture or otherwise dehumanise people that lived within it's reaches. It is to make sure that if ever the awesome power of the State is directed against you that you have protections from that power.

It makes sure that the State cannot kill you unlawfully, that is if it is to kill you it must be able to justify that action. That if you do die in State custody that the state has to investigate the circumstances that led to your death. It ensures that that the State has no ability to deprive someone of their life. I cannot understand why anyone would want to weaken that provision to make it easier for the State to kill. We've literally just had a case where an innocent man was imprisoned for seventeen years. The State has repeatedly demonstrated now and when it was first abolished that it cannot be trusted to get it right and only kill the guilty. I don't know about anyone else but my desire for vengeance against criminals is not such that I'm willing to handwave away the risk that the State gets it wrong and kills an innocent person. After all it could be me, or you.

I would also quibble with the idea that this is an antiquated notion that is out of step with modern reality. Article 2 as written provided an explicit carve out for the death penalty. It was only Protocol 6 in 1985 which determined it would only be permitted in times of war and Protocol 13 in 2003 which prevented it in all circumstances. 2003 might be twenty years ago now but let's not pretend that Article 2 is some dusty piece of old law.

Or how about Article 3 that makes sure that the State cannot torture you, it cannot subject you to inhuman or degrading treatment. The Police cannot just rough you up a bit if they think that you're guilty but have the temerity to protest you innocence. Article 6 which grants you the right to fair trial, that you hearing must be carried out by an independent and impartial court which is held in public. That there must be a presumption of innocence, that you must have access to legal advice as well as time and resources to prepare your legal defence. That they should not be unnecessary or excessive delays. Making sure that the State cannot just determine that you're guilty and arrange a trial with a judge who will make the decision the State wants and, even if it can't sort that, makes sure that you just languish in prison waiting trail for an indeterminate period of time. And so on and so on.

I find it crackers that people seem to think that, for some reason, the ECHR is an outdated document or somehow infringes on our rights. The ECHR is a living thing which develops along with society and protects us, all of us, from the power of the State. Both now and in the future.

So far all we've heard, in this conversation, is that it's bit annoying that the ECHR prevents the State from killing people with the death penalty and that it is "profoundly damaging to the UK". I have yet to hear a cogent explanation for how it is profoundly damaging the UK nor indeed what other rights, that is to say protections for the individual against the State, that are causing that damage and should therefore be removed.

Very well put. Agree 100%.

 

[DynamicSpirit]

No there isn't. Rights are absolute. You either have a right to life or you don't.

Rubbish. There's absolutely nothing wrong with having rights under certain circumstances, but not having those rights under other circumstances.

If you think the right to life is absolute, how on Earth do you account for that, on all the available evidence, every single person who has ever lived either has died or will eventually die? Should we be taking the Government to court over denial of human rights every time someone dies of illness or old age? I'm sure that you'll agree that it would be absurd to do so - which demonstrates that there are circumstances in which there is no automatic right to life.

 

[najaB]

Rubbish. There's absolutely nothing wrong with having rights under certain circumstances, but not having those rights under other circumstances.

Nope. The moment you add "if..." it stops being a right and starts being a privilege.
For example: "You have the right to hold a religious belief. If it is Christianity."

If you think the right to life is absolute, how on Earth do you account for that, on all the available evidence, every single person who has ever lived either has died or will eventually die? Should we be taking the Government to court over denial of human rights every time someone dies of illness or old age?

What action did the Government take to infringe on the right to life?

I'm sure that you'll agree that it would be absurd to do so...

I agree that your argument is absurd, yes.

 

[birchesgreen]

If you think the right to life is absolute, how on Earth do you account for that, on all the available evidence, every single person who has ever lived either has died or will eventually die?

Is this a wind up?

 

[Yew]

Rubbish. There's absolutely nothing wrong with having rights under certain circumstances, but not having those rights under other circumstances.

Such as when a political opponent is prosecuted on trumped up, politically motivated charges?

 

[bspahh]

That's a fair point. It probably wouldn't be a good idea to set about trying to repeal the UK Human Rights Act/withdraw from the ECHR/etc. without first having a very good idea of what should replace it.

To withdraw from the ECHR, you also need to replace the Good Friday Agreement, with the approval of both sides in Northern Ireland.

David Allen Green wrote on this topic in his blog.

 

[The Ham]

What action did the Government take to infringe on the right to life?

The "best" answer I could come up with is that below (even though it's not me being asked the question), however even these would be a bit of a stretch, as it wouldn't be their direct action, but rather allowing things to happen and so it would be difficult to demonstrate that it was directly their fault. Of course many would, to fully deal with, require significant state intervention and so would probably breach other rules.

Inaction on:
- air quality
- gun control (one for those across the pond rather than here)
- restricting smoking
- providing adequate healthcare
- obesity

 

[AlterEgo]

No there isn't. Rights are absolute. You either have a right to life or you don't.

Rights to life are conditional. I don't have the right to life if I am about to shoot a police officer with a gun and am then gunned down by the police, nor if I am a combatant in war and get deleted by an Exocet missile.

Neither of these are punishment, but the right to life is not absolute, even under the ECHR, which expressly permits states to use capital punishment, and even allows "absolutely necessary" force when referring to law and order:

Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

 

[najaB]

Rights to life are conditional. I don't have the right to life if I am about to shoot a police officer with a gun and am then gunned down by the police, nor if I am a combatant in war and get deleted by an Exocet missile.

There's a saying that's applicable here: "Your right to swing your fists, though absolute, ends where my face starts."

In the first example you gave, while the criminal has a right to life, that is trumped by the police officer's right to self defence, and in your second example the rights codified in the Geneva convention take priority.

 

[AlterEgo]

There's a saying that's applicable here: "Your right to swing your fists, though absolute, ends where my face starts."

In the first example you gave, while the criminal has a right to life, that is trumped by the police officer's right to self defence, and in your second example the rights codified in the Geneva convention take priority.

So we agree the rights aren't absolute, as you said earlier, but rather like any other right they conflict with the rights of others.

And of course the ECHR expressly allows capital punishment, which is unusual in that this part of the ECHR allows for the removal of a right (in this case to life) without a justification of interference to any of the other rights by another person. Simply - that the state may execute you if it is permitted by law; that's it.

 

[najaB]

So we agree the rights aren't absolute, as you said earlier, but rather like any other right they conflict with the rights of others.

I think we are talking at cross-purposes. By 'absolute' I mean that they exist exactly as stated, rather than being qualified or being conditional. The fact that they are absolute doesn't mean that they are inviolate (cf. the immovable object meeting the irresistible force).

The role of courts (even the ECtHR) is to make judgement and determinations where two sets of right are in conflict.

 

[nw1]

To withdraw from the ECHR, you also need to replace the Good Friday Agreement, with the approval of both sides in Northern Ireland.

David Allen Green wrote on this topic in his blog.

Nice. So all that hard work in the 1990s goes to waste.

But I suppose that is 2020s British politics for you.

 

[brad465]

If we were to leave the ECHR for whatever reason I would only support it if the following happened:

1) The lives of the overwhelming majority of the population would improve as a result.
2) A replacement is decided by a committee/organisation containing independent experts and/or cross party representation.

I would not support leaving the convention before a suitable replacement has been drafted, broadly accepted and is ready to go immediately, and certainly not as a result of the decision of any one political party on its own accord.

 

[nlogax]

If we were to leave the ECHR for whatever reason I would only support it if the following happened:

1) The lives of the overwhelming majority of the population would improve as a result.

How would you even begin to measure that? I mean.. I guess I broadly agree with the sentiment but that sort of ideal is almost impossible to quantify.

 

[AlterEgo]

I think we are talking at cross-purposes. By 'absolute' I mean that they exist exactly as stated, rather than being qualified or being conditional. The fact that they are absolute doesn't mean that they are inviolate (cf. the immovable object meeting the irresistible force).

The role of courts (even the ECtHR) is to make judgement and determinations where two sets of right are in conflict.

Yes indeed, fair comment.

 

[nw1]

If we were to leave the ECHR for whatever reason I would only support it if the following happened:

1) The lives of the overwhelming majority of the population would improve as a result.
2) A replacement is decided by a committee/organisation containing independent experts and/or cross party representation.

I would not support leaving the convention before a suitable replacement has been drafted, broadly accepted and is ready to go immediately, and certainly not as a result of the decision of any one political party on its own accord.

My big question would be : "are a number of other European countries (aside from those ruled by hardliners, such as Hungary) considering doing likewise?"

If yes, then anti-ECHR sentiment might, perhaps (but more likely not) have some foundation.

If not, it would, to me, look suspiciously like the exceptionalism of the British right-wing. If the UK right is the only political grouping in Europe complaining about it, that would, to me, seem distinctly suspicious.