The ECHR and Labour’s rules

Here is a note written by Duncan Shipley Dalton on the ECHR and how it does, and doesn’t apply to the Labour Party. …

The Convention means the European Convention on Human Rights (ECHR). This was created by the Council of Europe and entered into force in 1953. The Council of Europe was set up in 1949. It is not formally part of the EU. However as a precondition of joining the EU a Country must also be a member of the Council of Europe and a signatory to the ECHR.

The ECHR is international law, and a Country adopts it by signing up to the Council of Europe and the Convention through whatever their own internal constitutional processes are. In the UK the Queen signs treaties because the Crown retains the prerogative authority to make treaties (or the PM exercising her prerogative power), Parliament usually gets a vote but it is not technically in the power of Parliament to agree to a treaty.

The ECHR was drafted by a committee led by the Scottish Tory MP Sir David Maxwell Fyfe QC. He was a Barrister, and a Judge was in his political career Solicitor General, Attorney General and Lord Chancellor. He was also one of the prosecutors at the Nuremberg War Crimes Trials post WWII (75th anniversary this year). Ultimately his homophobic views and his failure to commute the sentence of Derek Bentley ended his career in the 60’s.

The relevance of this is that in the drafting of the ECHR there was a much stronger influence of the British common law legal tradition than the civil law tradition more common in the rest of Europe (and Scotland). The same can be said of the US Bill of Rights which was heavily influenced by the founding fathers, like Adams being trained in the English Common law approach.

As part of the Council of Europe a Court of Human Rights was created to interpret and enforce the ECHR. The acronym for this Court is the ECtHR (European Court of Human Rights).

From the UK signing up to the ECHR until 1998 there was no direct domestic enforceability of the ECHR in the UK. It could be enforced but had to be done through the application of the ECHR as an international law commitment. I won’t go into a long explanation about how international law applies in the UK because it is not straightforward. EU law, although international, is different because the treaties create a direct domestic legal applicability which was enforced by the application of the European Communities Act 1972 (repealed on 31st Jan 2020).

The consequence of this was the from 1953 to 1998 the UK had submitted more ECHR cases to the ECtHR than any other any signatory Country. In 1998 the Labour (sic) Government enacted the Human Rights Act 1998 c.42 (for those that don’t know this is a legal terminology, all acts of parliament are given a number in order in the year they pass, so HRA 1998 c.42 means it was Chapter 42 of 1998 i.e. the 42nd act to be passed by the Queen in Parliament in the year 1998.)

The Human Rights Act 1998 (HRA) works to bring the ECHR into domestic UK law. It doesn’t set out all the rights itself the way it works is to create UK domestic law obligations to the ECHR. The Convention is still a piece of international law, but it is given a certain amount of domestic enforceability through the HRA.

In the UK if you want to make a claim on the basis of the ECHR it has to be done through the provisions of the HRA. Under the HRA at s.6 it is unlawful for public bodies to act contrary to the ECHR. Under s.7 there is created a right to enforce this and take legal action against a public body that has acted contrary to the ECHR.

There is no corresponding right to take action against a private body nor is it stated that it is unlawful for private body to act contrary to the ECHR. In this sense the ECHR does not have a direct applicability to the Labour Party. Labour is an unincorporated association and as such is a wholly private body.

To complicate things a little however at s.3 of the HRA its states:

  1. So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

There is no distinction between public and private in this section, so it does apply to the Labour Party. What it doesn’t do is create a direct enforceable right. You can’t in my view claim e.g. Art 10 (Freedom of Expression) applies directly but if Labour is interpreting other legislation (e.g. Equality Act 2010) it is legally obliged to do so in such a way as to be compatible with the ECHR. In this way ECHR rights can be claimed against Labour, but you have to have another legislative right to hang it onto. To complicate things a bit more. This requirement in the HRA at s.3 is extended in regard to the Courts by s.2, Interpretation of Convention rights.

  1. A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
    1. judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
    2. opinion of the Commission given in a report adopted under Article 31 of the Convention,
    3. decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
    4. decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

The effect of these provisions are that any Court or Tribunal is required to interpret and apply any domestic legal provisions (including the common law) in a manner that is compatible with the ECHR. This applies to legal disputes involving public bodies, or private bodies. It would still apply in a dispute between two solely private bodies.

As Labour is an unincorporated association the nature of the member to member relationship is one of contract. The rules represent the terms of that contract. If the interpretation of the rules (contract) is challenged in Court then the Court has a legal requirement under s.2 and s.3 of the HRA to interpret and apply those rules (contract terms) in a manner compatible with the ECHR. I have not come across anyone making this argument in any cases against Labour previously but in my view it is a correct interpretation of the HRA.

The claim by the Equalities and Human Rights Commission (EHRC) that Art 10 protects members is overly simplistic. The application of the ECHR vs the Commission (EHRC) is direct because as a public body the EHRC is subject to the HRA under s.6. and s.7. The Labour Party is not though. In this way I don’t see the Art 10 protection being directly applicable in Labour. However I do think that if e.g. rule 2.I.8/9 were challenged in Court on some basis then an additional argument can be made to the Court that if 2.I.8 is interpreted in line with Art 10 it is overly restrictive and is incompatible with the rights contained in Art 10 and thus the Court would be required to construe the contractual term more narrowly in order to protect the rights of members re Art 10.

This is more complex and is why Dave Levy is right about putting the ECHR directly in the Party Rules. I think Dave and I discussed this 3-4 years ago and both suggested it to CLPD, but it never went anywhere.

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