Blog by Fraser Latta, immigrations and human rights solicitor in Glasgow
The 3rd of September 2013 will mark the 60th anniversary of the coming into force of the European Convention of Human Rights (ECHR).
However, recent focus from the Press and the current Westminster Government has questioned whether access to the ECHR should be restricted or replaced.
This may come as a surprise to some, as it was largely based on UK legal principles, and was drafted by UK lawyers.
A brief history
Originally introduced as a response to the atrocities of the Second World War, the ECHR now guarantees a range of rights and freedoms to an individual against interference by the State.
Certain rights are absolute – for example freedom from torture – while others are balanced against a variety of matters, including the protection of the public.
The current practice
Initially rights under the Convention could only be accessed by petitioning the European Court of Human Rights based in Strasbourg. However, the introduction of the Human Rights Act 1998 gave direct effect to the Convention, with the intention of bringing rights home. This meant that individuals could raise matters with the UK Courts and Tribunals without having to go to Europe.
It would be impossible in a blog of this size to go through in detail all the rights that are protected. However, a quick glance at any newspaper will highlight how the ECHR has now become an integral part of our society – be it in relation to same sex marriages; destruction of baby ashes; or the freedom to practice ones religion.
A critical eye
The recent criticism of the ECHR is that it is a hindrance to the proper governance of the country. Many feel aggrieved that British matters are being decided by European Courts.
This assertion is usually cast following the reliance on the Convention by those who are disenfranchised in our society – like prisoners or those who have no immigration status.
However, it would be a dangerous move to restrict access for some sections of our society to what are fundamental and basic rights. Any move away from the ECHR would be a move away from what defines us as a modern and democratic nation.
In reality
The late Lord Bingham of Cornhill, one of the most astute and respected judges of recent times, previously responded to criticism of the Convention by posing two questions: Which rights of the Convention would you disregard? And; would you rather live in a country in which these rights were not protected by law? The answer to both of these questions should (hopefully) be glaringly obvious.
Surely in modern day Britain it would seem incredible to remove the right to a fair trial, or the right to a private and family life? We must always remember that these basic rights are not respected in every country.
The ECHR should therefore be celebrated for the protection it brings to our society. The Convention provides a necessary balance to the State, and this is something which is becoming increasingly important in times of austerity.
Living instrument – no time to retire
At present the views of the Westminster parties towards issues of human rights appear to be universally sceptical. We have increased stop and searches; heightened anti-immigration rhetoric; and greater intrusion by the State into our private lives.
The Convention is a valuable check to ensure that an appropriate balance is kept, and to prevent victimisation and discrimination of vulnerable parties. The Convention by definition is a living instrument, which means that it responds as required to the changes in our society.
In that respect the Convention has never been more needed. Any thoughts of retiring the Convention should be dismissed, as it provides the backbone to a fair, just and tolerant society. That is surely what the British drafters would demand.
Fraser Latta is the Managing Director of Latta & Co. Solicitors, a firm which specialises in immigration and human rights law. He is also a tutor in Human Rights law at the University of Glasgow. Please follow him on twitter: @lattalaw
