After Gibraltar
Conor Gearty
1.Were the SAS acting under government instructions when they shot dead three IRA members on a bombing mission to Gibraltar on 6 March 1988? The ambivalently negative answer recently supplied by the European Court of Human Rights has infuriated the Government and re-opened the whole question of whether Britain should now enact its own Bill of Rights. There is no dispute about the basic facts of the case, which was brought by relatives of the three deceased. Mairead Farrell was shot five times in the head and neck and three times in the back from a distance of about three feet. Daniel McCann was hit by five bullets, twice in the back and three times in the head. A pathologist later agreed that the third IRA member Sean Savage had been ‘riddled with bullets’ in what looked like a ‘frenzied attack’. He was hit 16 times, with a number of bullets entering his head while he lay on the ground. Witnesses to the shootings of Farrell and McCann also claimed they had been shot while on the ground, and some observers suggested that they might have attempted to surrender. The European Court had to decide whether killing them in this way infringed their(qualified)right to life under Article Two of the European Convention on Human Rights.
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Letters
Vol. 17 No. 23 · 30 November 1995
From Anthony Barnett
Conor Gearty (LRB, 16 November) suggests that the British Constitution, characterised by the absolute sovereignty of the Crown in Parliament, should be ‘reinvigorated’. But it is past such resuscitation. Any pluralist alternative to our single, absolutist power structure means a constitutional court. It is absurd, therefore, to suggest that the need for a Bill of Rights has ‘sneaked’ onto the reform agenda. However, Gearty’s warnings about the dangers of simply incorporating the European Convention and the possible consequences of judicial activism are well made. This is why reform must be taken further, to a fully democratic settlement sustained by popular support. It is a great pity that Gearty does not join reformers in this project instead of rehearsing a futile endorsement of a swiftly crumbling status quo. Not least because the cumulative effect of his arguments is likely to encourage passivity, resignation and the belief that a Bill of Rights can only shift the balance of advantage towards big money.
Anthony Barnett
Charter 88
Vol. 17 No. 24 · 14 December 1995
From Shaun Spiers
Conor Gearty is right to caution against giving judges political power (LRB, 16 November). Politicians, not judges, should make policy. It would therefore be useful to see a similar analysis of the judicial activism of the European Court of Justice. At present, most of the Court’s decisions suit the Labour Party, but this will change with Labour in government. We should start to question the extent to which the Court is making political rather than simply legal judgments.
Shaun Spiers
MEP for London South-East
From John Wadham
Conor Gearty’s article on the killing of the three IRA members in Gibraltar is a very useful summary of the circumstances leading up to the decision of the European Court of Human Rights. Unfortunately he has also taken the opportunity to set out his views on why we should neither incorporate the European Convention of Human Rights into domestic law nor implement a domestic Bill of Rights.
The Convention is of course getting old and should have been incorporated by the United Kingdom thirty years ago, but that does not mean that it is not an important document setting out at least some minimum rights and one that remains a ‘living instrument’. In 1950 when it was adopted no one would have predicted that its right-to-privacy article would protect gay men from criminal prosecution for their sexuality in both Northern Ireland and the Republic. Equally, no one would have predicted that it would ensure the right to information on contraception and abortion for women in the Republic.
Even the rash of successful decisions by the courts in this country on behalf of prisoners and against the Home Secretary can be traced back to a series of important judgments in Strasbourg. Had judges been able to take the Convention properly into account prisoners’ rights would indubitably have been further improved. This should be enough to convince Conor Gearty but he believes that the incorporation of the Convention would make it impossible to have ‘any radical egalitarian change of our society’. The jurisprudence of the Court in Strasbourg does not bear out this pessimistic thesis and I think that those who will benefit from having their rights set out clearly in writing will not wish to wait until Conor Gearty’s utopia arrives.
Of course the incorporation of the Convention will not usher in a new golden age either, and there are many cases (many of them taken there by Liberty) that have been turned down by the institutions in Strasbourg. That is why the incorporation of the Convention is only the first step and we need to begin the process of consultation on a domestic Bill of Rights to improve on the rights set out in the Convention. Conor Gearty is apparently not willing to countenance any possibilities that do not give him all he wants at once.
The belief that anything which restricts the sovereignty of a democratically elected government is wrong is a belief that surely cannot be justified in such unsophisticated terms. Enshrining principles of human rights is important precisely because it limits the power of the majority. There are many minorities which can never attract the support of the majority and it is necessary to protect them. Who most needs protection will of course vary from society to society but those who have a different sexuality from the majority or a differently coloured skin or who are disabled are likely to need rights in most societies.
John Wadham
Acting General Secretary,
From J.A.G. Griffith
Anthony Barnett for Charter 88 (Letters, 30 November) as usual runs away from the fatal defects in the proposal to incorporate the European Convention of Human Rights. He advocates a constitutional court but does not say whether it would be empowered to declare Acts of Parliament invalid. And he weakly falls back on the need for ‘a fully democratic settlement sustained by popular support’. But he is right to say that the arguments against incorporation lead to ‘the belief that a Bill of Rights can only shift the balance of advantage towards big money’.
J.A.G. Griffith
Marlow, Bucks
