Human Rights
- The Background
- The United Nations
- Human Rights in the UK: the key facts
- What difference does this make to us?
- Intercom and Human Rights
The European Convention on Human Rights
The European Convention on Human Rights ("ECHR" for short!), was produced by the Council of Europe in 1950, and ratified by the United Kingdom on 8 March 1951. It has legal force within all nation-states that have ratified it. The ECHR is enforced by the European Court of Human Rights ("ECtHR"), which the Council of Europe set up in 1959. The ECtHR is based in Strasbourg.
The Council of Europe, the ECHR, and the ECtHR are all completely separate from the EU (European Union). There is no connection between them and the EU.
The European Convention of 1950 applied to the United Kingdom from 1953, when it came into force. It affects public authorities such as central and local government, the police and Courts and criminal justice system, the health service, and so on.
But for the first fifty years or so the only access UK citizens had to their own human rights was through an appeal to the European Court in Strasbourg. UK Courts were not allowed to take the ECHR into account when reaching decisions. Even when judges knew that their judgement, based solely on current UK law, clearly involved a breach of the European Convention, they still had to make a decision which they knew was wrong, and which they knew an appeal to the ECtHR in Strasbourg would probably overturn.
The appeal to Strasbourg was not an easy process. However good someone's case, they had to fight it right through the entire UK Courts system, including the House of Lords---an immensely long, unfair and expensive process. It was all very frustrating when all the Courts could see there were ECHR principles involved, but none of the Courts, not even the House of Lords, was allowed to take these principles into account.
For more information about the ECHR, and an overview of the European and international Courts which are sometimes confused, go to our European and International Human Rights page.
For the text of the ECHR, go to the link in the left-hand column.
The Human Rights Act 1998 did not introduce new human rights into the UK. It simply made it legal for the UK Courts to take the existing ECHR rights into account when they make their decisions. This means that "our rights have come home", and are now a part of our own Courts system. As a result, fewer people have to take their cases on the long road to Strasbourg.
The Act also introduced a clear, efficient and sensible mechanism for public authorities to protect themselves against being discriminatory by carelessness, or ignorance, or accident, and so opening themselves to challenge. Have a look at the box below.
The Universal Declaration of Human Rights was adopted by the United Nations General Assembly in December 1948. It does not specifically mention "sexual orientation" or "gender identity", but uses some positive inclusive language (e.g. "or other status"). Unfortunately there is no Court which has the power to enforce the Declaration, let alone to create case-law which might define its meaning for the present day, so the Universal Declaration remains a profoundly influential and important document which is in practice unenforceable. In the last few years there have been various attempts to persuade the United Nations Organisation to take an effective human-rights-based stand in favour of the rights of women, LGB people, and children; but all these have been fiercely, and usually successfully, resisted by some member and observer States. (The United States, for instance, in respect of children's rights; Malaysia, the Vatican and others in respect of LGB rights.)
- UN Universal Declaration of Human Rights
- UN Convention on the Rights of the Child
- Other United Nations declarations on human rights
Human Rights in the UK: the key facts
Absolute rights and qualified rights
The Human Rights Act and the ECHR declare that we all have certain absolute human rights, such as the right to life and freedom from torture, which no member state of the Council of Europe is allowed to qualify or ignore.
Some other rights are "qualified" rights, such as the right to private life, the right to enjoy freedom of speech and freedom of association, the right to practice a religion, and so on. These qualified rights can be balanced and interpreted, within limits, by each member State. It is recognised that these "qualified" rights may sometimes conflict with each other. In cases where there is a conflict of qualified rights it is the State's obligation to achieve a balance which is as fair as possible to all sides.
Where do LGB and Trans people come in?
Article 14 of the Convention prohibits discrimination in the enjoyment of Convention rights "on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status". This list does not specifically mention "sexual orientation" or "gender identity", but it does use the phrases "on any ground such as" and "or other status", both of which make it clear that this list is not exclusive, and does not limit those who can benefit from the Convention.
Elsewhere, the ECHR says that everyone has a right to their private and family life, their home, and their correspondence (Article Eight).
Over the decades, the Courts have made it clear that even though sexual orientation and gender identity are not specifically mentioned, the ECHR does protect LGB people and Trans people from discrimination, particularly under these two Articles 8 and 14.
For a list of some ECHR legal decisions that have affected LGB and/or Trans people's lives, have a look at the very useful page produced by the international organisation Human Rights Watch.
N.B. There are two very important judgements which are not listed in the Human Rights Watch page: one dated 31 July 2000 which declared the offence of "gross indecency" was unlawful under the ECHR (A.D.T. v. the United Kingdom, no. 35765/97); and another dated 10 February 2004 which declared that discrimination in the age of consent for gay men was unlawful (B.B. v. The United Kingdom, no. 53760/00).
You can search the ECtHR database of decisions through their search engine.
So what difference does this make to us?
Specific judgments of the ECtHR have already brought about key legislative change in the UK:
- the abolition of the discriminatory offence of gross indecency
- the removal of the ban on LGB people serving in the armed forces
- the equalisation of the age of consent
- the introduction of the Gender Recognition Act
These legislative reforms at Westminster were all directly related to judgements where the ECtHR had found the UK Government was in breach of its obligations under the ECHR. Intercom sends our deepest gratitude to all the individuals over the years who taken their case for equality all the way through to the European Court at Strasbourg. We all owe them a great deal. We would not be where we are without them.
More generally, now that the ECHR is part of our domestic Courts system, we can argue the case for equality and fairness directly to the family, county and criminal Courts, citing the ECHR where appropriate, and the Courts are bound to take the ECHR into account when making their decisions. This is a major advance on where we were ten years ago. Very very few of us have the resources and the time to take a case all the way to Strasbourg. Now, we should not need to.
But the most important thing of all is surely the Human Rights Act Toolkit mentioned above. If public authorities use the Toolkit then they will be securing us against discrimination on grounds of sexual orientation and gender identity, and at the same time protecting themselves and their officers from judicial review and other Court appearances. This is why Intercom campaigns for all public authorities to mainstream the use of the Human Rights Act Toolkit through all their policy and strategy activities, and all their service-areas.
Intercom has adopted a human-rights-based approach; we try to make this real through all our planning and operations. You can find our Human Rights Policy on our Policies and Other Key Documents page.