Every time that threats are made to pull the UK out of the European Convention on Human Rights (ECHR), those opposed to such a drastic move remind us that Britain was its first signatory and that Winston Churchill was a strong supporter of the project.

The ECHR is thus represented as expressing quintessentially British legal and ethical values and withdrawal from it as repudiating the legacy of Churchill and the British politicians, lawyers and civil servants who played the key role in establishing it in the first place.

This argument is heard with increasing frequency from the ECHR’s defenders now that both the Tories and Reform UK are committed to withdrawal and the Labour government has announced that it wishes to see radical changes to the Convention. Entirely unsurprisingly, the right-wing ‘think tank’ Policy Exchange, which has a long history of unremitting hostility to both the ECHR and the European Court of Human Rights (ECtHR), has recently added its own distinctive voice to the fray.

A ‘living instrument’

The argument advanced by Policy Exchange is summed up by Lord Sumption in his preface to their report Revisiting the British Origins of the European Convention on Human Rights [pdf[, namely that the Convention has been so radically transformed since the 1970s that it is

no longer recognisable as the instrument which British negotiators and draftsmen envisaged in the years following the Second World War. Having begun as a code of rights which were fundamental to civilised states and almost universally accepted, it has been extended into many areas which are far from fundamental and may be politically highly controversial. Instead of the ‘system of collective security against tyranny and oppression’ which the leading British representative Sir David Maxwell-Fife [actually Sir David Maxwell Fyfe] described, it has become a template for most aspects of human life. (2025: 9)

The main culprit, in his view, is the ECtHR which, from the 1970s onwards, ‘began to emancipate itself from the text [of the ECHR], a process which has continued to this day. It developed the “living instrument” doctrine, which purports to allow it to invent new rights with no basis in the language of the treaty, in accordance with what it regards as the spirit of the convention’ (ibid.). Or as the authors of the report itself, Conor Casey and Yuan Zi Zhu, have it:

The way in which the Convention system has developed today, particularly the very prominent role of the European Court of Human Rights and its dynamic living instrument approach to interpretation, is utterly inconsistent with any reasonable account of what those British officials and lawyers involved in its drafting thought they were creating. The dynamic approach of the ECtHR and the intrusiveness of its jurisprudence into what were once viewed as purely domestic matters, was simply never dreamt back at the time of ratification. (2025: 13)

From this angle, the desire on the part of the Tories and Reform to leave both the ECHR and ECtHR can be seen not as a repudiation of the legacy of Churchill and his colleagues but, on the contrary, as a perfectly justified response to the post-war machinery of human rights being drastically altered in ways with which they would have strongly disagreed.

Equally, Labour’s proposed human rights reforms can be interpreted as an attempt to return to the original conception of the Court and the Convention as envisaged by their British architects.  This was, in fact, a relatively limited and modest one that was far less extensive and expansive than that favoured by many of the continental European politicians, lawyers and civil servants involved in the creation of both the ECHR and ECtHR.  But this raises the fundamental question of whether the British side hobbled the ECHR at birth by unnecessarily cramping and confining it or, alternatively, prevented it from becoming an unwitting agent of overreach and a threat to the sovereignty of those states which are signed up to it. Or, to put it slightly differently, was Britain playing its all-too-frequent role of divisive and awkward partner in matters European or doing its best to create a supranational human rights treaty and court while still respecting the national sovereignty of its signatories?

The origins of the ECHR

In order to try to answer this question we need to go back to the origins of the ECHR and then to examine the present government’s proposed human rights reforms in this particular historical context. In doing so, however, it is hard to avoid the conclusion that the UK’s role in the creation of the ECHR was not as positive as some of the Convention’s present-day defenders frequently represent it as being.  As the Liberal-Democrat peer Anthony Lester, one of the architects of the Human Rights Act 1998 (HRA), argued in his article in Public Law, Spring 1984, ‘Fundamental Rights: the United Kingdom Isolated?’, the Convention actually had a painful beginning, having to weather the strenuous efforts of Clement Attlee’s Labour government to stifle it at birth. As one of the leading human rights historians, A.W.B. Simpson, noted in Human Rights and the End of Empire (2001), the Labour cabinet ‘expressed a violent if ill-defined dislike of the Convention’ when first encountering it in 1950. In common with many civil servants at the time, they appeared to see it as their bounden duty to protect the constitution, the common law system and the British Empire from ‘subversive’ continental influences and the legal equivalent of fancy foreign food.

However, British lawyers, civil servants and politicians did play a very significant role in the creation and drafting of the ECHR. One important group included Conservative figures who were members of the European Movement, a pan-European group of prominent politicians, scholars, artists and citizens keen to build closer ties between the peoples of post-war Europe. This group included the former prime minister Winston Churchill and Sir David Maxwell Fyfe, a former solicitor-general and attorney-general who would go on to become home secretary and Lord Chancellor (one renowned for his reactionary attitudes, not least to homosexuality). It was closely involved in spearheading the creation of the Council of Europe and putting the notion of a European charter of rights onto its agenda. Maxwell Fyfe played a key role in shaping the drafts that formed the basis for discussion of what would eventually become the final Convention text. A second key group included members of Attlee’s government and senior civil servants. This group would exercise a major influence on negotiations over the final shape of the Convention – including the delineation of the rights to be included in it and the precise nature of its enforcement mechanisms.

Britain’s support for the idea of the Convention stemmed from a desire to preserve basic and  already-existing rights and liberties common to Western European democracies, and in particular to safeguard them from the kinds of abuses of state power exemplified by fascism, Nazism and communism. To this end they consistently attempted to ensure that, as Conor Casey and Yuan Yi Zhu put it, ‘any rights included in the Convention would take precise and determinate form, such that their text would limit the risk of expansive interpretation that might go well beyond the terms agreed and might thereby impose unexpected legal obligations on the signatory states’ (2025: 14).

The final draft of the Convention that emerged in June 1950 from the negotiations represented a compromise between the British proposals and the more expansive ones favoured by the Consultative Assembly of the Council of Europe and the European Movement. The rights provisions and the clauses setting out the manner in which the exercise of those rights could be regulated by member states were specified precisely enough to satisfy the British. In terms of the enforcement of those rights, there was to be a Court and a Commission, the latter’s job being to examine applications to the Court and to weed out those that it judged to be inadmissible. However,  at the insistence of the UK and several other states, the Court’s jurisdiction was to be optional, and individuals would not be permitted to bring a case before it.

There was considerable disagreement between members of Attlee’s cabinet and the British participants involved in the drafting, but in the end the former felt bound to accept the Convention, albeit highly unwillingly. For example, Maxwell Fyfe had originally argued that the Convention should be judicially enforceable and that citizens of the signatory states should have the right individually to petition the Court. But this position (which he later abandoned) was consistently and strenuously rejected by the British government – the Attorney-General Sir Hartley Shawcross dismissing such a right as ‘wholly opposed to the theory of responsible government’ (quoted in Lester 1984: 52). The Lord Chancellor, Lord Jowitt, was aghast at the idea of ‘a tribunal composed of elected persons who need not even be lawyers, drawn from various European states possessing completely different systems of law, and whose deliberations take place behind closed doors’. In his view, ‘any student of our legal institutions … must recoil from this document with a feeling of horror’ (quoted in ibid.), particularly as it threatened to undermine the system of common law. As he put it in a letter to fellow Cabinet member Hugh Dalton, ‘we were not prepared to encourage our European friends to jeopardise our whole system of law, which we have laboriously built up over the centuries, in favour of some half-baked scheme to be administered by some unknown court’ (ibid.: 51-2).

Although the UK government felt bound to ratify the ECHR in 1951, it was not until 1965 that a future Labour government declared, under what was then Article 25 of the Convention, that it would accept the jurisdiction of the Court in relation to individual complainants. And in the 1990s Labour signalled its willingness to incorporate the Convention into British law, which it accomplished via the Human Rights Act 1998 (HRA). However, once in power, New Labour frequently displayed hostility to its own creation, particularly when this was employed to challenge the anti-terrorism measures which it introduced in the wake of both the 9/11 and 7/7 attacks, and also when it was invoked in order to extend protection to refugees and asylum seekers that the government and much of the media stigmatised as ‘bogus’.

A chorus of opprobrium

In the face of the inevitable barrage of hostile and wildly inaccurate press stories on these issues, successive home secretaries, and in particular David Blunkett and John Reid, all too often augmented the chorus of opprobrium, amply aided and abetted by Tony Blair. For example, on the BBC’s Breakfast with Frost in 2003 he argued that the position regarding asylum and illegal immigration was ‘unacceptable’ and promised that ministers would ‘fundamentally’ re-examine the UK’s obligations under the Convention. Similarly, after the 2005 London bombings he again threatened to weaken the HRA in order to make it easier to remove suspected terrorists and their accomplices, stating: ‘Let no one be in any doubt, the rules of the game are changing’. And in 2006 he criticised as ‘an abuse of common sense’ the decision of a senior judge to prevent the deportation of nine Afghan refugees who hijacked a plane to Britain on the grounds that if they were deported they risked being subjected ‘inhuman or degrading treatment or punishment’ and thus having their Article 3 rights breached. He then instructed the newly appointed Home Secretary, John Reid, to ‘look again at whether primary legislation is needed to address the issue of court rulings that overrule the government in a way that is inconsistent with other EU countries’ interpretation of the European convention on human rights’. A Downing Street source revealed that one possible option was to amend the HRA so as to require a ‘balance between the rights of the individual and the rights of the community to basic security’. Another possibility was to amend the Act if British courts blocked moves to deport terror suspects in spite of the existence of ‘memorandums of understanding’ from the countries concerned that they would not be tortured.

This led Lord Lester to complain that:

Mr Blair persists in undermining public confidence in the rule of law and the protection of human rights by the senior British judiciary. Instead of defending the Act and the judiciary, he joins the chorus of critics. Having sown the wind of ignorant opposition, he and his government reap the whirlwind.

Indeed, even Jack Straw who, as home secretary, had been responsible for incorporating the ECHR into British law via the HRA, allowed himself to be manipulated by the Daily Mail into expressing certain misgivings about the way in which it was operating, misgivings which the paper immediately exploited as part of its endless campaign against the EHRC, the HRA and indeed the judiciary. Thus in a lengthy interview on 8 December 2008 covering a wide range of subjects, Straw ventured: ‘I fully understand that Mail readers have concerns about the Human Rights Act. There is a sense that it’s a villains’ charter or that it stops terrorists being deported or criminals being properly given publicity. I am greatly frustrated by this, not by the concerns, but by some very few judgments that have thrown up these problems’. But although Straw’s concerns in this part of the interview are quite clearly with (a) perceptions of the HRA (which, one might add, have been severely distorted by blatant misreporting on the part of papers such as the Mail); and (b) the actions of a handful of British judges in British courts, the Mail headlined the interview itself: ‘Justice Secretary on the Great Human Rights Shambles’, an article based on it: ‘Human Straw [sic] to Get Tough. Exclusive: Minister Tells the Mail How He’ll Reform “Villains’ Charter”’, and ran an editorial which began:

As this paper has always argued, the Human Rights Act turns justice on its head by putting the rights of criminals above those of the law-abiding. Now, at last, a minister has had the honesty to admit as much. Not just any minister, either. As Tony Blair’s first home secretary, Jack Straw was the man who piloted this disastrous Act on to the statute book ten years ago.  

Julian Petley is the Honorary and Emeritus Professor of Journalism, Brunel University London