Dr Martin Parsons is the author of a book on Conservativism and is a former overseas aid worker in Pakistan and Afghanistan.
There is a myth which is widely propagated by the Liberal-Left that the European Convention on Human Rights (ECHR) is the pinnacle of human rights and is essential to protect us from such things as detention without trial and even torture.
Despite many people believing this, it is in fact unhistorical twaddle. As is the claim which often goes with it, that human rights emerged in the era of the French revolution and the 1789 French Declaration of the Rights of Man and the Citizen.
However, as Mrs Thatcher robustly told a French newspaper during the 1989 bicentennial celebrations of the French Revolution
“Human rights did not begin with the French Revolution…human rights really stem from a mixture of Judaism and Christianity…we had 1215 Magna Carta,..We had the Bill of Right.. We had 1689, our silent quiet revolution, where Parliament exerted its will over The King.”
The ECHR is a flawed approach to human rights
There are two basic problems with the ECHR
- It is a bottom-up approach to human rights, which gives abstract rights to individuals, which then conflict with the rights of others. But why should the rights of ordinary British citizens to live in safety be balanced against the rights of a foreign jihadist not to deported back to his own country because of poor human rights there?
- The ECHR has been extended by activist judges far beyond what those who originally drafted it ever intended. The fact, that it now effectively prevents the UK government deciding who can enter and live in our own country is the clearest evidence of this. As I recently argued on Conservative Home – this is vastly different from what the 1951 Refugee Convention, which was written at almost exactly the same time, sets out.
Our historic freedoms
Our own historic freedoms, which Mrs Thatcher referred to, do not suffer from either of these problems. This is because they are a top-down approach which guarantees the freedom of the individual by placing limits on the extent to which the state can interfere in ordinary citizens’ lives.
For example, the first article of Magna Carta, states that ‘the English church shall be free’ i.e. of government control, something completely missing from the ECHR which only deals with individual rights. While Article 29 states that the state cannot punish anyone except by “lawful judgment of his Peers, or by the Law of the Land.” Both of these are still on the statute book.
Mrs Thatcher referred to the Judaeo-Christian origin of human rights and many of these rights can be traced back to the conversion of Anglo-Saxon kings to Christianity. Pagan kings were essentially despots who could do whatever they wished. However Christian kings understood they ruled as a deputy on behalf of God the King of kings and would have to give account to him on the day of judgement. That created the space for bishops to speak truth to power, one of the earliest developments of freedom of speech. It also meant that his law had to reflect God’s standards of justice.
As such, by the thirteenth century it had become a central tenet of English common law that – as Sir Edward Cooke later reminded James 1
“The king is subject to no man EXCEPT God and the law”
The idea that government is not above the law – is actually the foundation of a free society. But it developed in this country long before the French Revolution, let alone the ECHR.
The common law which was largely based on a combination of natural law and Christian ethics developed a whole series of freedoms over the centuries including effectively making torture illegal (The Felton case,1628) and declaring that any slave who set foot in England was free (The Somerset case,1772).
Both the English and Scottish parliaments also passed specific laws such as the Habeas Corpus Act 1679 (England) 1701 (Scotland) restricting the power of government. The Bill of Rights 1689 which created a constitutional monarchy specifically stipulated that the government could not introduce laws without the consent of parliament. While the Toleration Act 1689 which allowed non-conformists to preach and meet for worship was an incredibly important milestone in the development of both freedom of religion and freedom of speech.
It was freedoms such as these which Edmund Burke was referring to when he wrote in his 1790 Reflections of the Revolution in France
“Your subjects have inherited this freedom … not on abstract principles ‘as the rights of men’, but as the rights of Englishmen”
Examples of how historic British freedoms provide better protection than the ECHR
- Freedom of religion and freedom of speech
It was because of this long heritage of freedom that when the text of the 1948 Universal Declaration of Human Rights was being negotiated the UK government submitted a draft text for what eventually became Article 18 (freedom of thought, conscience and religion) which included the freedom
“To endeavour to persuade other persons of full age and sound mind of the truth of his beliefs”
However, that was opposed by Saudi Arabia and a number of Islamic countries. The final form of Article 18 simply affirmed that everyone had the right to freedom of thought, conscience and religion and then gave two examples of what this included – the right to change one’s religion and the ambiguously phrased right to ‘manifest’ one’s religion. The ECHR which was drafted two years later in 1950 essentially copied and pasted this text into Article 9.
However, had the original UK text been accepted – we might have been spared the whole current ‘cancel culture’.
One of clearest illustrations of this was the definition of free speech given by Lord Justice Sedley in the High Court (Redmond-Bate v DPP, 1999) shortly before the Human Rights Act, which directly incorporated the ECHR into UK law, came into force
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”
If only…
- Non-Crime Hate Incidents
Magna Carta specifically prohibited the state from punishing anyone without a proper legal process. While that other cornerstone of our constitutional freedoms, the Bill of Rights 1689 specifically prohibited the crown and the king’s government from enacting laws without parliamentary approval.
However, the ECHR singularly failed to prevent the College of Policing without any parliamentary approval effectively creating a new quasi-legal offence of ‘Non-Crime Hate Incidents’ (NCHI)’ in 2014. As a non-challengeable police record which can seriously affect people’s job prospects, these function as a criminal law in all but name.
They and have been imposed an estimated 133,000 times without those affected having any right to a trial. The sheer scale of this makes it one of the worst human rights abuses in UK history. Our constitutional freedoms such as Magna Carta and the Bill of Rights restrained such abuses for centuries. The ECHR failed to do so.
The ECHR must be replaced.
Dr Martin Parsons is the author of a book on Conservativism and is a former overseas aid worker in Pakistan and Afghanistan.
There is a myth which is widely propagated by the Liberal-Left that the European Convention on Human Rights (ECHR) is the pinnacle of human rights and is essential to protect us from such things as detention without trial and even torture.
Despite many people believing this, it is in fact unhistorical twaddle. As is the claim which often goes with it, that human rights emerged in the era of the French revolution and the 1789 French Declaration of the Rights of Man and the Citizen.
However, as Mrs Thatcher robustly told a French newspaper during the 1989 bicentennial celebrations of the French Revolution
“Human rights did not begin with the French Revolution…human rights really stem from a mixture of Judaism and Christianity…we had 1215 Magna Carta,..We had the Bill of Right.. We had 1689, our silent quiet revolution, where Parliament exerted its will over The King.”
The ECHR is a flawed approach to human rights
There are two basic problems with the ECHR
Our historic freedoms
Our own historic freedoms, which Mrs Thatcher referred to, do not suffer from either of these problems. This is because they are a top-down approach which guarantees the freedom of the individual by placing limits on the extent to which the state can interfere in ordinary citizens’ lives.
For example, the first article of Magna Carta, states that ‘the English church shall be free’ i.e. of government control, something completely missing from the ECHR which only deals with individual rights. While Article 29 states that the state cannot punish anyone except by “lawful judgment of his Peers, or by the Law of the Land.” Both of these are still on the statute book.
Mrs Thatcher referred to the Judaeo-Christian origin of human rights and many of these rights can be traced back to the conversion of Anglo-Saxon kings to Christianity. Pagan kings were essentially despots who could do whatever they wished. However Christian kings understood they ruled as a deputy on behalf of God the King of kings and would have to give account to him on the day of judgement. That created the space for bishops to speak truth to power, one of the earliest developments of freedom of speech. It also meant that his law had to reflect God’s standards of justice.
As such, by the thirteenth century it had become a central tenet of English common law that – as Sir Edward Cooke later reminded James 1
“The king is subject to no man EXCEPT God and the law”
The idea that government is not above the law – is actually the foundation of a free society. But it developed in this country long before the French Revolution, let alone the ECHR.
The common law which was largely based on a combination of natural law and Christian ethics developed a whole series of freedoms over the centuries including effectively making torture illegal (The Felton case,1628) and declaring that any slave who set foot in England was free (The Somerset case,1772).
Both the English and Scottish parliaments also passed specific laws such as the Habeas Corpus Act 1679 (England) 1701 (Scotland) restricting the power of government. The Bill of Rights 1689 which created a constitutional monarchy specifically stipulated that the government could not introduce laws without the consent of parliament. While the Toleration Act 1689 which allowed non-conformists to preach and meet for worship was an incredibly important milestone in the development of both freedom of religion and freedom of speech.
It was freedoms such as these which Edmund Burke was referring to when he wrote in his 1790 Reflections of the Revolution in France
“Your subjects have inherited this freedom … not on abstract principles ‘as the rights of men’, but as the rights of Englishmen”
Examples of how historic British freedoms provide better protection than the ECHR
It was because of this long heritage of freedom that when the text of the 1948 Universal Declaration of Human Rights was being negotiated the UK government submitted a draft text for what eventually became Article 18 (freedom of thought, conscience and religion) which included the freedom
“To endeavour to persuade other persons of full age and sound mind of the truth of his beliefs”
However, that was opposed by Saudi Arabia and a number of Islamic countries. The final form of Article 18 simply affirmed that everyone had the right to freedom of thought, conscience and religion and then gave two examples of what this included – the right to change one’s religion and the ambiguously phrased right to ‘manifest’ one’s religion. The ECHR which was drafted two years later in 1950 essentially copied and pasted this text into Article 9.
However, had the original UK text been accepted – we might have been spared the whole current ‘cancel culture’.
One of clearest illustrations of this was the definition of free speech given by Lord Justice Sedley in the High Court (Redmond-Bate v DPP, 1999) shortly before the Human Rights Act, which directly incorporated the ECHR into UK law, came into force
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”
If only…
Magna Carta specifically prohibited the state from punishing anyone without a proper legal process. While that other cornerstone of our constitutional freedoms, the Bill of Rights 1689 specifically prohibited the crown and the king’s government from enacting laws without parliamentary approval.
However, the ECHR singularly failed to prevent the College of Policing without any parliamentary approval effectively creating a new quasi-legal offence of ‘Non-Crime Hate Incidents’ (NCHI)’ in 2014. As a non-challengeable police record which can seriously affect people’s job prospects, these function as a criminal law in all but name.
They and have been imposed an estimated 133,000 times without those affected having any right to a trial. The sheer scale of this makes it one of the worst human rights abuses in UK history. Our constitutional freedoms such as Magna Carta and the Bill of Rights restrained such abuses for centuries. The ECHR failed to do so.
The ECHR must be replaced.