Let’s celebrate the Council of Europe
London4Europe Committee member and former Home Office senior civil servant Michael Romberg writes about the history and achievements of the Council of Europe. He asks whether Brexit places our membership - and the protection of human rights - under threat.
The Council of Europe was founded though the Treaty of London on 5 May 1949 – hence that date too is a Europe Day (as well as the EU’s 9 May). British Labour Foreign Secretary Ernie Bevin said on the occasion: “We are witnessing today the establishment of a common democratic institution on this ancient continent of Europe”. (Later, some in that Labour Government would not be so keen on the Convention on Human Rights.)
The Conservative Prime Minister Winston Churchilll had proposed its creation in 1943, even while the War was still being fought. He tried to "peer through the mists of the future to the end of the war", once victory had been achieved, and think about how to re-build and maintain peace on a shattered continent. Given that Europe had been at the origin of two world wars, the creation of such a body would be, he suggested, "a stupendous business".
He returned to the theme in 1946 at Zurich University with a call for a United States of Europe and again in August 1949 in Strasbourg when he said “The dangers threatening us are great but great too is our strength, and there is no reason why we should not succeed in achieving our aims and establishing the structure of this united Europe whose moral concepts will be able to win the respect and recognition of mankind, and whose physical strength will be such that no one will dare to hold up its peaceful journey towards the future”.
The aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.
Its focus is to promote human rights, democracy and the rule of law across Europe. Its most important element is the Convention on Human Rights and the associated Court. The head quarters of the Council and the Court are based in Strasbourg. Perhaps the Council’s greatest achievement is the abolition of the death penalty. But it also works on a wide range of subjects including the safety of medicines, protection of children, and the Eurimages film support scheme (which, ahem, I had thought was an EU scheme: memo to self – look more closely at the logo).
All European States apart from the Vatican, Belarus and Kazakhstan are members. You have to be a member to join the EU.
The Council is entirely separate from the EU, although it shares a flag and an anthem. Its logo is the 12 gold stars within a lower case ‘e’. There is a handy guide to distinguish the similar-sounding entities.
The Universal Declaration of Human Rights
The key milestone in the post-WWII development of human rights was the 10 December 1948 adoption by the United Nations of the Universal Declaration of Human Rights. It set out, for the first time, a common standard of achievements for all peoples and all nations regarding fundamental human rights to be universally protected.
Its 70th anniversary is expected to pass almost without official notice in the UK. This LSE blog by Professor Francesca Klug points out that the Declaration was written for a time like the present, when lessons learnt from genocide and war are being replaced by national pride and international indifference.
The European Convention on Human Rights
Many had been bitterly disappointed that the Universal Declaration was just that: a non-binding declaration. But that was in part the point. It should set out a vision, an idea, frankly a dream.
The ECHR which followed in November 1950 was a binding Convention. It sets out the traditional human rights: life, liberty, fair trial, respect for a private life, prohibition of discrimination and so on.
The Charter of Fundamental Rights of the European Union
In 2000, the EU adopted the Charter of Fundamental Rights. It has the same status in law as an EU treaty. There is a British opt-out which prevents the ECJ using the Charter as a new power to overturn a British law, but the effect of that protocol is not clear.
The Charter goes far wider than traditional human rights documents and includes “third generation human rights”. So it covers modern subjects like personal data privacy and social and employment rights. It is also where EU-specific rights are located, such as the right to vote in European Parliament elections.
Not everyone is a fan of human rights
The British tabloid press has consistently been annoyed by ECHR judgements – and has confused the Council of Europe with the EU and the Court of Human Rights with the ECJ. It is thought that many people believe that leaving the EU means that we are leaving the ECHR.
David Cameron had said it would make him sick to give prisoners the vote and ensured that his government failed to implement a binding ECHR ruling calling for that to be granted.
A chunk of Theresa May’s April 2016 Remain speech is taken up with her view that we should leave the ECHR. She is an adherent of the “England invented human rights” school. If Brexit takes place the way would be clear for the Government to join two quasi-dictatorships and a theocracy as the only European countries outside the Council of Europe. Lack of Parliamentary support has placed her desired ECHR exit on hold.
In the same speech she said that she was no fan of the Fundamental Charter of Human Rights. As a result, the Government’s EU Withdrawal Bill whose general aim is to reproduce EU law in its totality as English law on Brexit Day on its introduction did not carry the Charter through into British law. The Joint Lords and Commons Committee on Human Rights criticised that decision in its January 2018 report. The House of Lords amended the Bill on 23 April to keep the Fundamental Charter in UK law after Brexit. Over to the House of Commons!
Moreover, not accepting the Fundamental Charter could harm the UK’s ambition to share in EU-wide security arrangements, as this LSE blog by Auke Willems argues.
We have much to be thankful for to the Council of Europe. Although some rights had been extant in Britain long before the Declaration and the Convention, others were at least strengthened by these international agreements. Moreover, there is a real advantage in having a multinational body look from outside at our practices and consider whether they reflect universal standards.
So 5 May and 10 December are anniversaries to celebrate.
Brexit, by permitting exit from the ECHR and by encouraging nationalism, puts the protection of human rights at risk.
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