Debunking the myths about the ECHR

This year the European Convention on Human Rights and its Strasbourg court are 75 years old – the age at which British judges are obliged to retire. Is it time for Britain to retire from this ageing institution? Not according to the Attorney-General, Lord Hermer, a former human rights lawyer, who recently pledged that under Labour Britain would never leave.

Apologists for the ECHR invariably turn to myths to make their case, foremost of which is the creation myth. The ECHR, they say, was a British invention. It was inspired by Winston Churchill and drafted by David Maxwell Fyfe. It codified historic British rights and the UK was the first country to ratify it. A cynic may say that this appeal to national pride to justify a supranational body seems a tad rich coming from left-wing internationalists. More importantly, the story is false.

The truth is that Clement Attlee’s government ratified the Convention with reluctance and only on the basis that the European Court would have no jurisdiction in the UK, since British people would not be allowed to take cases to the court. They also decided to treat the Convention as non-binding and deliberately did not alter laws known to be incompatible with it. Moreover, when Churchill returned to No. 10 a few months later (with Maxwell Fyfe, now Lord Kilmuir, as his lord chancellor) they adopted the same position – as did subsequent Conservative prime ministers.

As for Churchill’s role, much is made of the fact that, in opposition, he endorsed the early proposal for a Court of Human Rights. But his other brief references to the court left it unclear whether he believed it would be just for west European countries emerging from fascism or if it would also apply to the UK.