Scrapping the ECHR would be a threat to our freedom of expression

You can probably think of a few real-world examples. For years, the threat of a serious confrontation with the European Union was just one of the Messiah policies used by the Tories to keep their electoral coalition together, until David Cameron’s devastating miscalculation of 2016.

The Americans call this the ­phenomenon of “the dog that caught the car”, ­existentially lost now the race is run. It’s actually an ­important life lesson: achieving your goals can be a strangely disorientating experience. Isn’t it interesting when political ­winners end so glum, having achieved ­exactly what they said they always wanted?

Because of this, we shouldn’t be ­entirely surprised that the reactionary forces in ­British politics were reverting to type last week, returning to the unfinished business of railing at unelected Euro judges and “Labour’s hated Human Rights Act”. It is an exercise in almost pure escapism and deflection. Having achieved Brexit, exiting the jurisdiction of the European Court of Human Rights was always guaranteed to be the next big opportunity to get the gang back together.

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For Kemi Badenoch in Manchester last week, these are “well-meaning treaties” written by “generations gone by” which are being used in ways “never intended by their original authors”. “What should be shields to protect the vulnerable,” she says, “have instead become swords to attack democratic decisions and frustrate common sense.”

Russell Findlay was happy to endorse this approach in Holyrood too, describing leaving the ECHR as “the only credible way we can again take control of our borders”.

But in the Scottish context, one of the more interesting things is that ­embedding ­Convention rights in the devolution ­settlement has often handed conservative social forces and economically powerful lobby groups new legal tools to frustrate and delay just the kind of democratic ­decisions Badenoch is now so keen to ­insulate from judicial scrutiny.

This is an aspect of the human rights story which is likely to read just as ­uncomfortably for advocates and critics of writing ­fundamental rights into law – ­because it suggests the beneficiaries of these additional protections isn’t always who you might imagine.

In a recent judgment, Lord Reed ­reflected critically on the phenomenon of “campaigning organisations which ­lobbied unsuccessfully against the ­measure when it was being considered in Parliament and then act as solicitors for persons affected by the legislation, or ­otherwise support legal challenges brought in their names, as a means of ­continuing their campaign”. He – and I think Badenoch and Findlay – assume these are liberal agitators and on the left of politics. But in Holyrood, we’ve seen the exact opposite.

If you look back on who has been able to use the ECHR to challenge democratically endorsed decisions since 1998, most of the high-profile cases have involved powerful economic interests and social conservatives seeking judicial interventions to frustrate Holyrood legislation.

Like the Good Friday Agreement in Northern Ireland, basic ECHR norms are written into the Scotland Act. The founding Scottish documents of devolution say that MSPs and ministers must act compatibly with Convention rights. If they don’t? Then the courts have the power to strike down whole acts of the Scottish Parliament as outside legislative competence.

This isn’t an abstract possibility. A number of conservative pressure groups have lawyered up and headed to court to try to resist Holyrood reforms on a mixture of well-founded and speculative bases. Take a quick canter through the ­judicial records.

(Image: Agency)

One of the earliest devolution cases involved Article 11 of the ECHR and the right to freedom of assembly. The particular meeting they had in mind included braying hounds, gymkhana hats, red jaikits and a cavalry charge’s worth of horses bounding across the Borders landscape to cries of “view halloo” whenever a small, startled blur of orange fur breaks cover.

Back in the 2000s, Scotland’s frustrated fox hunters went to law, arguing the ­Protection of Wild Mammals (Scotland) Act 2002 was outside Holyrood’s legislative competence. The act banned deliberately hunting a wild mammal with a dog or condoning such hunts on your ­property. The hunters argued that the restriction violated their rights to privacy, their property and constituted unlawful discrimination against this cultural community.

The ban was ultimately upheld by the House of Lords and the ECHR plea ­rejected – but it was an early illustration that many of the deep-pocketed ­litigants who actually use the Convention in our courts aren’t the foreign rapists, ­murderers and paedophiles of ­fevered tabloid imagination. Often as not, they’re powerful interest groups, with enough money to afford sustained litigation all the way to the nation’s top courts, ­supported by the Scottish Tories.

This wasn’t an isolated example. In 2009, AXA General Insurance sued ­Holyrood over the decision that people suffering from thickening of the pleura of their lungs as a result of asbestos ­exposure should be able to sue for damages in the civil courts.

Once again, this decision was ­challenged on the basis it violated the big insurer’s right to property under ­Article 1 Protocol 1 of the ECHR – which is ­elegant code for “not paying the workers a penny” for their asbestosis. AXA lost too, but not until 2011 when the Supreme Court finally upheld the competence of a bill voted on by MSPs years earlier.

It isn’t just global insurers who discovered they have human rights which can be used to protect their operating profits and resist new regulation. In 2012, big tobacco took the opportunity to pursue their own judicial reviews in Scotland, arguing Holyrood’s ban on cigarette vending machines violated these companies’ right to property, among other technical objections. Another loss.

It seems significant that the first time the courts struck down Holyrood ­legislation, it concerned rights in land ownership and a failed bid by MSPs to give greater protection to agricultural ­tenants. In Salvesen v Riddell, the court decided this act of the Scottish Parliament violated the property rights. The landlord got his land back. The farmers got stuffed. Even if you think this was a decision justified on its ­merits, it isn’t exactly the kind of case most readily conjured to mind when critics or exponents talk about human rights.

The legal challenge to minimum ­alcohol pricing had its roots in EU law rather than the ECHR, but the challenge was similarly supported by the Scottish Tories for most of its progress through the court system, then quite happy for Holyrood’s democratic choices to be frustrated by competing commercial interests in court. The conglomerate of major alcohol manufacturers and distributors lost their case too – but these legal challenges deferred enforcement of these policies for years and years and years, as well as ratcheting up legal costs for everyone involved.

Another Scottish Tory cause ­célèbre – the legal challenge to the “named ­persons” scheme on privacy grounds – only ­succeeded because Article 8 of the ECHR was brought into domestic law. If Badenoch, and Findlay, and Nigel ­Farage get their way then there will be no ­privacy law any of us will be able to ­appeal to in the event that public ­authorities overreach in future.

The same goes, incidentally, for questions of freedom of expression – a cause which Findlay claims was one of his reasons for getting involved in politics in the first place. From the high watermark of its earlier decisions in the 1970s, the European Court of Human Rights in Strasbourg underscored that “freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man”, stressing it is applicable not only to ideas which are “favourably received or regarded as inoffensive or as a matter of indifference”, but also to those that “offend, shock or disturb the State or any sector of the population”.

“Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society,” the European Court held in its Handyside judgment.

Despite routine and uncritical suggestions by exponents of ECHR repeal that Britain has a noble history of protecting freedom of expression under the common law, as Professor Adam Tomkins argues in his new book On The Law Of Speaking Freely (Hart 2025), there is vanishingly scant evidence for this in the actual history books, disclosing ­instead a lively history of punishments for ­heresy, sedition, obscenity and good old -fashioned British censorship under the common law going back centuries.

The same folk who routinely contend that the UK isn’t protecting free expression are proposing to abolish the only scant protection in law currently available for it – and apparently haven’t noticed the glaring contradictions in their position.