Sir Winston Churchill, Conservative Lawyers, and the Origins of the European Convention on Human Rights

Correcting Some Tired Myths

In recent years, the United Kingdom’s continued membership of the European Convention on Human Rights (ECHR) has been the subject of much political controversy, while calls to reform the ECHR regime or indeed to withdraw from it entirely, have grown.

As a keen follower of these debates, I found myself increasingly irked by a particular argument I saw repeated with tiring frequency. This is the argument that the ECHR is in fact a quintessentially British document; anchored in the thought of British politicians and lawyers; in some respects a codification of timeless common law principles and rights; an impeccably conservative document, and one of the legacies of Churchill’s storied career.

The argument is typically directed at conservative parliamentarians and thinkers who should be ashamed, so the argument goes, to contemplate such a deeply unconservative course of action as to walk away from the institutional house that Churchill and his Conservative colleagues built. The former Conservative prime minister Sir John Major offered a good example of the argument in action when he told the House of Commons Northern Ireland Affairs Committee in 2023 that “the founding father of [the ECHR/Council of Europe] was Churchill and members of his Government: it was a British invention. We would be in pretty rum company if we were to leave.”

The fundamental problem with this argument is that the popular historical narrative it relies on about British involvement in the creation of the ECHR is simply wrong. While it is true that British lawyers and officials had a considerable influence in its drafting, they crucially sought to keep the Convention a limited document that would guarantee basic and already-existing rights in the signatory states - more or less core axioms of the natural law - against the threats of totalitarianism. The Labour Attlee government that eventually ratified the Convention, in particular, fought tooth and nail to keep the aspirations of the document limited to serving as a bulwark against fascism and communism. Its rights provisions were, partly thanks to their tireless lobbying, directed principally against the repetition of human rights atrocities associated with the Second World War, and occurring on the other side of the Iron Curtain in the late 1940s.

It was never intended to be turned into the open-ended “living instrument” that it has become in the hands of the European Court of Human Rights since the late 1970s. As the former UK Supreme Court Justice Lord Sumption has noted, through its extravagant lawmaking, the European Convention now expands far beyond any plausible account of its intended scope as a protector of core natural rights, but touches on everything from “legal status of illegitimate children, immigration and deportation, extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant law, and a great deal else besides”. As of 2024 and the judgment in Verein Klimaseniorinnen Schweiz and others v. Switzerland Application no. 53600/20, one can now add to this list a “right for individuals to effective protection by the State authorities from serious adverse effects of climate change”.

Those supportive of how the Convention has developed over the last 75 might well argue that the intentions and aspirations of the drafters should not in any way control how the Convention is understood and interpreted today, and that the way the Convention has shifted in its objectives and methodology are welcome developments. But one cannot maintain this argument whilst simultaneously saying that leaving would betray the legacy of Britain’s involvement in the Convention’s formation and drafting, because this original legacy has long been abandoned by the ECtHR and its jurisprudence.

For those that are interested in hearing more on this, my colleague Dr Yuan Yi Zhu and I have written a report for Policy Exchange which tries to set out an accurate historical account of Britain’s involvement in the drafting of the Convention. We show that arguments that the ECHR of today is a part of “Churchill’s legacy”, the handiwork of British jurists, an impeccably Conservative document steeped in venerable British common law traditions, are quite simply myths that are deployed for their rhetorical and emotive impact but, upon examination, have little historical or philosophical substance grounding them.