Thread by @NJ_Timothy

Quick thread on the history of the ECHR, since I've seen lots of people repeating the argument that this is "Churchill's Convention". Insofar as that was ever true, the ECHR as it was then is completely unrecognisable compared to today (1/n):

It's true Churchill and David Maxwell-Fyfe made a contribution early on, but the Attlee govt was always worried about British participation and the consequences for sovereignty. In 1950 HMG was very cautious about the ECHR, and opposed to the establishment of a Court.

The Convention was opened for signature in November 1950, and HMG ratified it the next year, on the basis that the right to individual petition and acceptance of the jurisdiction any future Court, were optional clauses. There was no Court and it was not clear there ever would be.

As Jack Straw, who gave us the Human Rights Act, says, signatory states would never have granted powers in such broad terms without a democratic override if they had "anticipated the vastly expanded role of the Court."

In 1960, however, the European Court of Human Rights was founded, and signatory states started to accept its jurisdiction and the right of individuals to petition it. This the UK did under the Harold Wilson government in 1966.

The jurisprudence of the Court grew from the late 1970s onwards. Through this time HMG renewed optional clauses and ratified reforming protocols. Nonetheless, there was growing British legal dissent about the widening interpretation of the Convention...

Sir Gerald Fitzmaurice, British judge on the Court in the 1970s, complained, for example, that Article 8 (right to a family life) should only be concerned with severe intrusions into family life, disagreeing with ECtHR rulings. Today, Article 8 frustrates the deportation of...

illegal immigrants and dangerous foreign offenders all the time. Fitzmaurice argued that Convention rights were becoming equated with domestic, conventional rights, and this was wrong: the ECHR was "never instituted to act as a sort of general law-reformer."

In other words, the Convention was becoming - expressly against what successive British governments had supported, starting with Attlee - a European bill of rights and the ECtHR a constitutional court. But unlike other constitutional models, there was no democratic override.

This was especially difficult for the UK, where the Crown in Parliament is the foundational constitutional principle, and common law rights is subservient to legislation, rather than protected in a positive, higher, conceptual sense by constitutional rights.

The idea that a Court should be able to overrule a decision made by Parliament or to require Parliament to legislate to make the law consistent with a Court's findings is therefore difficult for British constitutionalists - judges and politicians alike - to accept.

Through the 1980s and 1990s the widening interpretation of the ECHR grew and the UK (like other countries) was found to have violated its obligations more and more. This led to resentment on the Right and a campaign for incorporating the ECHR into British law on the Left.

In the mid-90s Protocol 11 was negotiated, leading to the right of individual petition and the jurisdiction of the Court to become mandatory, and not renewable by member states. The Major government opposed mandation, arguing it changed the balance elected govts and the Court.

But that argument was lost, HMG ratified Protocol 11 in 1994, and it took effect in 1998, when a new permanent Court was also established. A 1995 HMG attempt to limit the role of the Court and increase the margin of appreciation failed.

And then came Tony Blair's Human Rights Act which incorporated the ECHR into British law. The courts started to treat Strasbourg interpretation of ECHR rights (often anticipated by British judges) as the final word. "Strasbourg has spoken, the case is closed," said Lord Rodger.

Since then, despite attempts to improve "subsidiarity" and increase the margin of appreciation, and various attempts to replace the HRA with a narrower Bill of Rights, the legal framework remains as it was before. The Court, if anything, is bolder and less transparent...

... as we saw with its use of the Rule 39 injunctions against HMG that caused the abandonment of the first flights to Rwanda. And as that case shows, and the pre-98 history, the problem will not be resolved by scrapping the Human Rights Act only.

The issue is with the ECHR and its Court. The Convention is a de facto European constitutional law, which sits worse with the British constitution than elsewhere, and unlike in states with codified constitutions has no democratic safeguards.

The Court of Appeal case this week showed how Convention rights are constantly expanded to cover evermore distant and indirect hypothetical risks and dangers. It is not unique - in fact the novel ruling on such indirect and hypothetical grounds is reminiscent of the Qatada case.

Tory MPs are not alone in seeing the problem. Jack Straw says, Strasbourg is “widening its role not only beyond anything anticipated in the founding treaties but … the subsequent active consent of all the state parties.”

Lord Hoffmann, the former senior judge, says Strasbourg “lacked constitutional legitimacy” in intervening in matters “on which member states … have not surrendered their sovereign powers.”

The former Lord Justice, Sir John Laws: “by our constitution there is an important difference between the protection of fundamental values and the formulation of state policy: broadly the former is the business of the courts and the latter the business of elected govt...”

But ECHR application, he said, “appears to merge these two ideas.” Lord Judge talks of a "democratic deficit". Lord Sumption has raised the possibility of British withdrawal saying: "I doubt whether significant change really is possible within the framework of the Convention."

Whatever you think of the ECHR today, it is not "Churchill's Convention", and not the ECHR of 1951. If we are going to have a debate about what to do about it, we should start by being honest about what it is.