What's in the European Convention on Human Rights?

The European Convention on Human Rights and Fundamental Freedoms (ECHR) 1950 was created by the Council of Europe (not to be confused with the European Union!). The Council of Europe was set up after the Second World War to protect human rights and the rule of law and to promote democracy across Europe. It was agreed to by the UK on the 4^th of November 1950.

This guide will explain what is actually in the ECHR, and although not everything has been included, we have focused on what we think are the most important bits. Our focus is on the preamble and actual rights protected, with some information about where we have incorporated the Convention into out Human Rights Act (HRA) and what we haven’t!

The preamble is the part, usually a few paragraphs, at the beginning of a piece of legislation. It sets out the purpose of the legislation. A link to the actual words of the preamble (and the Convention in full) can be found here European Convention on Human Rights (coe.int).

In short, it says that all member governments of the Council of Europe will work towards peace and unity based on human rights and fundamental freedoms. The Convention marks their decision to take the primary steps to enforce most of the rights found in the Universal Declaration of Human Rights (UDHR), by codifying them into a body of law. The UDHR is a post WWII (1948) Declaration which set out for the first time, fundamental human rights to be universally protected, which means human rights that are for every person, everywhere. A copy can be found here.

Many of these rights are protected directly in UK law by the HRA, however those underlined are not. The main argument for this was that the HRA is meeting the obligations in Article 1 to protect everyone in the UK, and is the effective remedy for when human rights are risked, as required by Article 13. This is explained by the Equality and Human Rights Commission here. That said, there are still cases against the UK in the European Court of Human rights on Article because there are some arguments that it could have even stronger ways to hold the government to account for human rights risks and abuses.

Article 1 ‐ Obligation to respect human rights. States must ensure that everyone has the rights stated in this Convention.

Article 2 ‐ Right to life. You have the right to life.

Article 3 ‐ Prohibition of torture. No one ever has the right to hurt you or torture you. Even in detention your human dignity has to be respected.

Article 4 ‐ Prohibition of slavery and forced labour. It is prohibited to treat you as a slave or to impose forced labour on you.

Article 5 ‐ Right to liberty and security. You have the right to liberty. If you are arrested, you have the right to know why. If you are arrested you have the right to stand trial soon, or to be released until the trial takes place.

Article 6 ‐ Right to a fair trial. You have the right to a fair trial before an unbiased and independent judge. If you are accused of having committed a crime, you are innocent until proved guilty. You have the right to be assisted by a lawyer who must be paid by the state if you are poor.

Article 7 ‐ No punishment without law. You cannot be held guilty of a crime if there was no law against it when you did it.

Article 8 ‐ Right to respect for private and family life. You have the right to respect for your private and family life, your home and correspondence.

Article 9 ‐ Freedom of thought, conscience, and religion. You have the right to freedom of thought, conscience, and religion. You have the right to practise your religion at home and in public and to change your religion if you want.

Article 10 ‐ Freedom of expression. You have the right to responsibly say and write what you think and to give and receive information from others.   This includes freedom of the press.

Article 11 ‐ Freedom of assembly and association. You have the right to take part in peaceful meetings and to set up or join associations ‐ including trade unions.

Article 12 ‐ Right to marry. You have the right to marry and to have a family.

Article 13 ‐ Right to an effective remedy. If your rights are violated, you can complain about this officially to the courts or other public bodies.

Article 14 ‐ Prohibition of discrimination. You have these rights regardless of your skin colour, sex, language, political or religious beliefs, or origins.

Article 15 ‐ Derogation in time of emergency. In time of war or other public emergency, a government may do things which go against your rights, but only when strictly necessary. Even then governments are not allowed to torture or kill you arbitrarily.

In order to enforce the rights above, the Convention also set up a court, the European Court of Human Rights (The Court). Below explains some important Articles describing how it works.

Article 21- Criteria for office. Judges must be of high moral character and suitably qualified. They must be younger than 65 when they are shortlisted for appointment. They must act completely as an individual, expressing only their own opinions and they must do nothing that could be a conflict of interest while they are in office. Whether or not this criterion is met is a decision for the Court.

Article 22 – Election of judges. A judge is elected by a simple majority of the Parliamentary Assembly. They pick from a shortlist of three candidates.

Article 35 – Admissibility Criteria. Admissibility means whether the court will accept something as valid or not, so if a case or evidence is admissible, it means the court will accept it. The person making the claim must be a victim, i.e. they have suffered because of it. This is reflected in Sections 7 of the HRA. For the European Court of Human Rights to accept an application:

• It must not be anonymous
• It can’t be on a matter already dealt with
• It must be compatible with Convention rights/protocols (more on these later)
• The applicant has suffered significant disadvantage (they have ‘victim’ status)

Article 46 – Binding nature of judgements. Once a judgement is made, it must be carried out by the country the claim has been made against. This is supervised by the Council of Europe (explained above), and if it is felt that the judgement has not been executed properly, the matter will go back to the Court.

The Protocols of the ECHR are sections that have put additional rights or processes into the Convention framework. Think of them as editing notes that must be followed, they have the same weight as the original Articles. The HRA takes three of its protected rights from the protocols, which are set out below.

First Protocol, Article 1- Protection of property. This is in the HRA as Article 1, Protocol 1 (confusing to say the least!). It means that you are entitled to peacefully enjoy your own property, subject to any legal restrictions.

First Protocol, Article 2 – Right to education. This is in the HRA as Article 2, Protocol 1. It means that no one will be denied an education, and the right of parents to chose how this education looks is respected.

First Protocol, Article 3 – Right to free elections. This is in the HRA as Article 3, Protocol 1. It secures our right to free and democratic elections at reasonable intervals.

There is also the abolition of the death penalty, in the HRA at Article 1, Protocol 13. However, it was abolished in the UK in 1998 and unused since 1946. It should be noted that the Thirteenth Protocol of the Convention, has, since 2004, stopped the death penalty from being restored.

There are however several important Protocols that the HRA does not include. These involve the Seventh Protocol around immigration and the Twelfth Protocol around equality. These are explained below. It is important to know that these parts of the ECHR are not part of UK law.

Seventh Protocol- Any legal ‘alien’ (non-citizen) can ask for any case for their removal from the country to be reviewed and to have competent representation while this happens. It also entitles such people to compensation for any mistakes in criminal proceedings. The UK did not make this part of the HRA.

Twelfth Protocol- This is a general right for the application of any UK law to be done without discrimination. Although the HRA has Article 14 prohibiting any discrimination while apply the HRA, the Twelfth Protocol would apply to all laws in the UK, and it has wider protections. This would obviously have quite an impact on things like the Counter-Terrorism and Sentencing Act 2021. The UK did not make this part of the HRA.