Jeremy Corbyn caused some distress amongst legal commentators over the weekend when he said to Andrew Marr that the European Court of Human Rights was ‘only in part an EU institution’. That simply isn’t true: the European Court of Human Rights (‘ECtHR’) is not in any way an EU institution. It is a Council of Europe court – and the Council of Europe is an organisation both broader and older than the European Union. The ECtHR exists to enforce the European Convention on Human Rights (the ‘ECHR’ – yes, all these abbreviations are confusing), something that was created in the aftermath of the Second World War and the Holocaust, agreed in 1950 and entering into force in 1953. Brits played a key part in its creation – it is something that for the most part the British legal community are justifiably proud of. So no, the ECtHR is not in any way an EU institution.
There is a link to the EU in a way, as a number of people have mentioned – but not in a way that makes the ECtHR in any way an EU institution. This link is that new member states of the EU are required to have signed up to the European Convention of Human Rights – and thus come under the jurisdiction of the ECtHR. This is because the EU recognises that the ECHR represents a minimum standard of Human Rights compliance – not that the ECHR is an EU document or the ECtHR is an EU institution. It isn’t even legally certain that existing members of the EU are required to be signatories of the ECHR – they all are, however, and no sensible or even slightly humane member state would be considering leaving the ECHR.
This is because the ECHR is a throughly positive document, and anyone who supports human rights should support our continuing to be a signatory. Certainly any Labour Party member – let alone any Labour Party leader, particularly one like Jeremy Corbyn with a history of supporting – indeed championing – human rights.
There is, however, at least one person who has suggested that we leave the ECHR: Theresa May. She’s been frustrated by the ECtHR more than once – and it is hard not to conclude that she’s far from a fan of human rights. Indeed, some have suggested that her antipathy for the ECJ – the European Court of Justice, which is is Luxembourg, as opposed to the ECtHR which is in Strasbourg – because she’s confused between the two courts.
That confusion is why so many legal commentators reacted so angrily to Corbyn’s remarks. Muddying waters that are already pretty murky feeds into the confusion between the courts – and potentially puts human rights even further at risk than they already are.
There is another potential reason that Corbyn might not want to be completely clear about this. If you support the European Court of Human Rights – which you should do if you support human rights – then that gives yet another reason to oppose Brexit. Whilst we’re still in the EU, it’s harder for the likes of Theresa May to achieve their aim of removing us from the ECHR – though technically, as noted, existing members may not be required to be signatories of the ECHR, that has not been tested and is highly unlikely. Keeping us in the EU provides another layer of protection for human rights. That, in these somewhat troubling times, might be crucial.