…the eternal truth which we must all remember; that barbarism is never behind us, it is underneath us. It is our task to see that it does not come to the surface, and we are attempting to fulfil that task .
Sir David Maxwell-Fyfe, on the purpose of the European Convention on Human Rights (travaux on Article 3)
As readers may know, in recent rulings on the meaning of deprivation of liberty Mr Justice Mostyn has been highly critical of the Supreme Court’s ruling in Cheshire West. One of the grounds of his criticisms is that is extends the scope of Article 5 of the European Convention on Human Rights (ECHR) – the right to liberty and security of the person – to situations where it was never really meant to apply. In Rochdale MBC v KW he commented:
10. The right is to liberty and security. The framers contemplated the lawful detention of only five classes of persons under (e) namely:
i) Persons with infectious diseases (in order to prevent their spread);
ii) persons of unsound mind;
iv) drug addicts; and
It seems reasonable to construe the lawful detention for these classes ejusdem generis. It seems obvious, at least to me, particularly having regard to the first class of case, that the framers plainly had in mind detention of such persons in a state institution such as a secure hospital, asylum or prison. It is noteworthy that in not one of the cases from the Strasbourg court since the advent of the Convention has it ever been suggested that lawful detention could happen in such a person’s own home.
11. In this side of the Atlantic we are generally not troubled by the ideological dispute between loose constructionists and textual originalists, as besets our American cousins. It is surely relevant, however, to understand the historical and social context in which Article 5 came to be promulgated. Europe was still reeling from the bestial abuses perpetrated by Nazi Germany and its allies. With the onset of the Cold War the spectre of the gulags was very real. The Convention as a whole, and Article 5 in particular, was devised as a bulwark against the repetition of those lawless abuses. To my mind, Article 5, as originally devised and intended by its framers, has absolutely nothing to do with the best interests care regime which Katherine enjoys in her own home.
In his subsequent judgment in LB Tower Hamlets v TB he defended his decision in Rochdale, arguing:
58. But to characterise those measures as state detention is to my mind unreal. I referred to the historical context in which Article 5 of the ECHR 1950 came to be formulated. It followed the Universal Declaration of Human Rights of 10 December 1948 which in its preamble referred to “the disregard and contempt for human rights [which] have resulted in barbarous acts which have outraged the conscience of mankind”; which in article 3 guaranteed liberty; and which in article 9 proscribed “arbitrary arrest, detention or exile.” It was aimed at the midnight knock on the door; the sudden disappearance; the prolonged detention. Article 5 was not aimed at Katherine, seriously physically and mentally disabled, who is living in her own home and cared for round the clock by carers paid for by an organ of the state.
 Although the originalist theory of statutory interpretation is generally eschewed on this side of the Atlantic it is worth remembering the historical context that informed the framing of the Convention in 1950. Art 5 was an important bulwark against totalitarian tyranny. As Parker J recently reminded us in Re MIG & MEG at para 222 its purpose is to prevent “arbitrary or unjustified deprivations of liberty”. I find it impossible to conclude that the framers of the convention would even in their wildest dreams have contemplated that Art 5 might be engaged by the facts presented here. Even allowing for the accepted concept that the convention is a living instrument there has to be a line drawn somewhere where the court will say “thus far and no farther” (to echo Lord Steyn, writing in a different context, in White (orse Frost) v Chief Constable of South Yorkshire Police  2 AC 455, HL at page 500).
As Mostyn J himself acknowledges, the interpretation of the ECHR does not – unlike interpretation of the American Constitution – rely upon the intentions of the drafters. It is often described as a ‘living instrument’ – the earliest reference to this that I can find is Tyler v UK, 1978 (but there may be earlier ones that I have overlooked), which states that ‘it must be interpreted in the light of present-day conditions’. So in a strictly legal sense, the intensions of the drafters of the ECHR are of historical and not legal interest . Nevertheless, it’s a theme that’s been coming up more and more in the context of heated debates about the role, scope and relevance of the ECHR in the UK.
UK mental health laws, prior to 1950
Mostyn J’s made me wonder: what did the framers of the ECHR have in mind, in relation to Article 5? Because, from a historical perspective, it’s not entirely obvious that it was never intended to apply in such circumstances. Up until the mid twentieth century, England and Wales (and many other commonwealth countries) had a vast network of legal safeguards relating to the confinement and treatment of people with mental disabilities (a term I’m using for the sake of convenience, to include intellectual, cognitive and psychosocial disabilities / mental health problems). ‘Informal’ admissions were eventually permitted but only very rarely used. Various safeguards applied across hugely diverse settings,and extended far beyond state institutions such as secure hospitals or prisons. In fact, the very earliest detention safeguards were developed in response to eighteenth century concerns that families were using private ‘Madhouses’ to confine relatives who had no mental disabilities, because they found them awkward (the case of Mrs Hawley aroused considerable concern). Even places that espoused a quasi-familial philosophy of care, or which might admit only a ‘single lunatic’, were subject to regulation and requirements for certification and other detention safeguards. Even ‘Mrs Rochesters’ – confined to the family home – were subject to a system of visitation at certain points.* To get back to the point, at the time the ECHR was being drafted (1950), English mental health law was in the grip of a very extensive and far reaching system of legal safeguards and regulation. These were eventually rolled back by the Mental Health Act 1959, based on the recommendations of Lord Percy’s Report of the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency. It is Percy’s report which established a preference for community care and ‘informality’ as far as possible. In many ways, Cheshire (and the Bournewood case before it) reverses this preference for informality.
Now, the ECHR of course wasn’t based on English law, but common European values – however it’s is often highlighted (in a nationalistic plea to xenophobic opponents of the ECHR) that UK delegates played a very active role during the drafting of the ECHR. If those delegates considered the role of mental health law at all, it would have been this earlier landscape of extensive legalism, rather than its ‘informal’ successor, that they would have made reference to. So from the outset, I was doubtful of Mostyn’s assertion in Rochdale that ‘the framers plainly had in mind detention of such persons in a state institution such as a secure hospital, asylum or prison’. Because in 1950 at least, mental health detention safeguards applied much more widely than that, and had done since the late eighteenth century.
The negotiations of Article 5 ECHR
These considerations prompted me to look in the travaux preparatoires of the ECHR (this is the term used for documents which provide detailed notes of the discussions during the negotiations of a Convention). These are published in eight volumes, which I found in my university library, but the Council of Europe’s registry has also published the declassified working documents documenting the negotiations. So I’ve had a rummage through these.
It has been said in the literature on the UN Convention on the Rights of Persons with Disabilities (CRPD) that the CRPD was required because people with disabilities were ‘invisible’ in earlier human rights instruments (Dhanda, A. (2006-7) ‘Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future’, Syracuse Journal of International Law and Commerce, 34, 429). I think what I managed to find pretty much bears this out for the ECHR, but not entirely. I read the travaux on the negotiations of Article 5 – and also Articles 3, 6, 8 and 14. Passing references to people with mental disabilities can be found, but with only very superficial discussion, and almost none of it would be considered progressive today.
The travaux on Article 5 reveal that the drafters started with a draft text for a United Nations ‘International Covenant on Human Rights’ – which materialised several decades later as Article 9 of the International Covenant on Civil and Political Rights (ICCPR). The drafters of the ECHR felt that the text of what became Article 9 ICCPR was too imprecise, observing that ‘any dictator would be prepared to accept such an Article’ (a quick glance at the list of states ratifying the ICCPR suggests this proved to be true). The ECHR drafters felt that ‘the first requisite of a legal instrument is that it should state precisely the rights which it confers and the limitations on those’, and they felt that the ICCPR text did not achieve this. And so, the negotiators began to assemble a list of all the possible limitations on the right to liberty which states could reasonably require.
The drafters of Article 5 ECHR clearly worried about including an explicit list of limitations. On the one hand, the absence of such a list was seen as problematic for being too imprecise, on the other hand – could any such list be comprehensive enough to provide for ‘reasonable’ detention by a state?
28. It was generally admitted that the right to liberty and security of person might be subject to restrictions, but the terms in which such restrictions should bo drafted gave rise to discussion. Proposals were made listing the possible grounds on which deprivation of liberty might be justified. However, it seemed seemed unlikely that any list proposed, whether restricted to some twelve grounds as in certain proposals or expanded to include about forty grounds suggested could cover all possible cases of legitimate arrest or detention. On the other hand, it was said that even if such a list could be made complete, its its adoption might not be considered desirable: the covenant should not give the impression of being a catalogue of restrictions to the rights which it set forth.
By the decision to opt for such a list, we can see the foreshadowing of the ‘kettling’ cases, and other similar cases where possible cases of detention appears to fall outside the scope of Article 5(1), and the ECHR and domestic courts have wriggled around this by arguing that these situations did not amount to a deprivation of liberty.
From the very outset, this list included detention of ‘persons of unsound mind’. There is no record in the travaux of any discussion of the inclusion of this group, so presumably the negotiating parties regarded this as uncontroversial. It means, however, we have no sense of which individuals and which situations they believed this would apply to. Later on, a Swedish delegate argued for measures to combat vagrancy, drunkenness and refusal to pay alimony and these were agreed. The UK, interestingly, raised concerns about the detention of children. The original draft permitted the detention of children who had committed an offence, or for the lawful supervision of their education, but the UK delegate argued as follows:
“Article 5(1)(d), as at present drafted, does not provide for the possibility of detaining minors for the purpose of bringing them before the court for the making of a ‘lawful order’. Many children brought before the courts have committed no offence at all and the purpose of their detention is to secure their removal from harmful surroundings, so that they are not covered by Article 5(1)(c). At the same time, the circumstances of the case usually demand that the child should be removed from harmful surroundings before he can be brought before the court. H.M. Government therefore wish Article 5(1)(d) to be expanded to read:
‘The purpose of detention of minors by lawful order for the purpose of educational supervision, or their lawful detention for the purpose of bringing them before the competent legal authority’.
So the drafters had in mind the use of detention to remove children from harmful surroundings. It seems to me that it is not a huge leap to suggest that they might have held similar views in relation to people with mental disabilities. However, if they did hold this view, it is not recorded as being discussed.
So in summary, the travaux neither confirm nor refute Mostyn J’s assertion that Article 5 ECHR was not intended to apply to these types of situations. The situation of people with mental disabilities was only fleetingly mentioned, but not discussed. I don’t think the drafters of the ECHR could have conceived of ‘supported living’ – although they would very likely have been able to understand ‘foster care’, and private care arrangements.
It is often said that the ECHR was only ever intended as a bulwark against Nazism and other forms of totalitarianism, and not more ‘trivial’ issues. It is certainly true that the ECHR was framed with such regimes in mind, but it also involved turning their minds to the kinds of situations which non-totalitarian European states do provide for detention in. In other words, part of safeguarding against totalitarianism required them to consider what a non-totalitarian state looked like, and according to them, it looked like a state that provided for detention of persons on grounds of unsoundness of mind, and also of children to protect them from harm.
Discussions of disability in the negotiations of Articles 3, 6, 8 and 14 ECHR
I looked at the travaux for Articles 3, 6, 8 and 14 to see whether there were any references to the rights of people with disabilities there. I’m afraid I didn’t find much to warm the cockles of your heart… Where there were references to people with disabilities, it was usually in relation to the limitation of fundamental rights for them.
The negotiations of what became Article 3 (prohibition on inhuman and degrading treatment and torture) begin with some really rousing speeches by UK delegates about the horrors of torture during the Second World War. These really are worth reading in full. In one passage, a UK delegate (Mr Cocks) argues that ‘imprisonment with such an excess of light, darkness, noise or silence as to cause mental suffering’ should be prohibited – a passage which has striking resonance today for those campaigning for the rights of people confined in hospitals, prisons and detention camps in such conditions. It transpires that what became Article 3 was originally ‘tucked away’ at the end of the report which the ECHR negotiations took as their starting point. Mr Cocks gave an impassioned plea that the prohibition on torture should be included at the outset, and was eventually consoled with a specific Article near the beginning.
Then began a lengthy discussion of whether particular forms of torture should be specifically prohibited. There were discussions about whether involuntary sterilisation, forced medical treatment, medical and scientific experimentation and mutilation should be explicitly prohibited. In the end, none of them were, but for different reasons. An overarching reason was that prohibitions of particular forms of torture might seem to imply that other forms of torture were permitted. Medical and scientific experimentation were felt to be better addressed by regulation than a Convention. ‘Mutilation’ was rejected by a UK delegate, who thought that the UK might still have laws permitting corporal punishment for violent robbery. Several Scandinavian delegates argued that sterilisation should not be explicitly prohibited, because these states had recently introduced ‘progressive’ laws permitting sterilisation, including of ‘sexual criminals’. A Belgian delegate demurred that this should be considered carefully, noting ‘when we talk of sterilisation, let us not forget that this was an innovation of the Nazi regime’. Sweden’s ‘racial purity’ sterilisation included people with disabilities and much wider groups, and the law referred to here was only repealed in 1976. Tens of thousands of people were sterilised involuntarily in Scandinavian countries and other nations; many are still seeking compensation and justice for what are now regarded by the UN and WHO as serious human rights violations. I think most would agree, at this point, that it is just as well the ECHR is a ‘living instrument’, and is not stuck in the values of 1950.
The only passing reference to people with disabilities under Article 6 was discussion of when proceedings might lawfully be heard in private. It was generally agreed that this was appropriate for children, ‘legally incapable persons’ and first offenders. The discussions then were very similar to those which are occurring today around transparency in family courts and the Court of Protection (readers might be interested to note the following comment: ‘judgment would be pronounced in the presence the family and friends the parties and in the presence of the press, but that, the general public would be excluded’).
Unlike the negotiations of Article 3, which are peppered with graphic examples of violations of rights, the negotiations of Article 8 rarely involve discussion of what concrete kinds of abuses it was meant to protect against. Much of the discussions seem to have focussed on whether it should expressly include protection for attacks to a person’s reputation. Article 14 is perhaps the grimmest of all from a disability rights perspective. Disability rights campaigners have long pointed to the absence of any explicit reference to disabled people in leading human rights instruments, and indeed this is true of the ECHR (as well as the UDHR and the ICCPR, amongst others). This is, in part, what prompted the drafting of the CRPD. Protection under Article 14 ECHR against discrimination on grounds of disability now falls under ‘any other grounds’, and was not found by the European Court until 2009 in Glor v Switzerland – a finding which referenced the CRPD. Disabled people are mentioned in the negotiations of Article 14, but in a way that runs entirely counter to the spirit of the CRPD. At one point, the proposed text would include ‘equality before the law’ provisions similar to Article 6 UDHR and Article 16 ICCPR. The UK proposed that this should be qualified so as to read: ‘All are equal before the law and shall accorded equal protection of the law; provided that this Article shall not be held to forbid the imposition of reasonable disabilities on minors and persons of unsound mind.’ This clause was dropped (no explanation is given) and in any case ‘equality before the law’ never made it into Article 14 ECHR (although it can be found in the Preamble). So disability was worse than invisible to the drafters of the ECHR: it was nearly deliberately excluded from Article 14.
Reading the travaux
Reading (bits of) the travaux proved to be a really interesting exercise. They provide a fascinating insight into the mindset that shaped the ECHR as we know it today, and many debates and discussions of the drafters still resonate with debates we are having today. Being a republican (of sorts) I was intrigued to see that in several places the delegates discuss whether the term ‘arbitrary’ (which was cited as having American origins) should feature in various articles. They consider whether ‘arbitrary’ means against the law (even if the law was unjust), without being explicitly ‘prescribed by law’, or a wider sense of justice. We see the negotiators wrestling with what today are considered foundational values of European justice. But we do not see them grappling with questions around disability, except in the most cursory of senses. Existing legal practices of guardianship, civil commitment, even involuntary sterilisation, go unquestioned. And so, it seems to me, that whilst there is much we can learn about the origins of the ECHR by looking at the travaux, if we want it to have a brighter future, we need it to be informed by the only binding legal instrument that has seriously considered the situation of disabled people and their rights: the CRPD. What the CRPD would have to say about deprivation of liberty in a context like Cheshire is something that makes my mind spin in circles – but that’s another post for another day.
*I’m not going to overburden you with detailed references, but I am writing a paper which briefly outlines this which hopefully I’ll publish in due course. Or you might want to check out books by Phil Fennell, Sarah Wise, Peter Bartlett, Andrew Scull, Roy Porter and the awesome Mental Health History Timeline by Andrew Roberts – which should come with a health warning as you could easily lose weeks of your life reading his fascinating archive of materials