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.

The three had intended to blow up a British Army target in the centre of Gibraltar, but the authorities had learned about the plan in advance, knew exactly when it would be carried out, who the target would be and the means – a car-bomb – that would be deployed. Despite this detailed knowledge, which included information as to the identities of two of them, the three were able to enter Gibraltar from Spain without being apprehended, park a car exactly where the attack was expected to occur and stroll around for nearly an hour, so that they were more than a mile away from their vehicle when the SAS was finally sent in. At the inquest into the deaths, the soldiers explained the killings by saying that they had been ordered to arrest the three, but that each had made suspicious movements which had led the soldiers to believe that it was necessary to shoot them dead in order to protect the lives of others. The suspicious movements fatally engaged in by the three supposedly consisted of efforts by each of them to press a button that each supposedly carried on his or her person which would supposedly have detonated a bomb which was supposedly in the car that had earlier been parked in the target area. Each of these strongly asserted suppositions turned out to have been false.

There was no explosive device in the car, which had been used merely as a blocking vehicle to reserve a space for the real car-bomb,due to be put in position two days later, when the army regiment that was to be its target would be in the vicinity. Although the security team,as became clear in the legal proceedings that followed, knew exactly when the IRA intended to strike, none of them seems to have thought it odd that the supposed car-bomb had been parked two days before its victims would be exposed to it; indeed at earlier briefings the possibility of just such a blocking car had supposedly been peremptorily discounted. (Gibraltar’s chief inspector of police, however, later told the inquest that he would not have brought the bomb in on the day of the proposed assault because the chances of getting an appropriate parking space would have been too slight.)

The soldier who claimed to have inspected the parked vehicle shortly after the three IRA members had walked away from it turned out to be neither an explosives nor a radio signals expert. His fatal assessment that the vehicle was a suspect car-bomb had supposedly been based on no more than the fact that the rusty radio aerial on the vehicle looked older than the car.Had the soldier had any knowledge of his supposed subject, he would have known that a rusty aerial was the opposite of what was required for the job that he said he thought it was doing. He would also have known that the whole threat could have been nullified by the simple and reasonably safe expedient of removing the aerial. (On the other hand, such a low-level army man would have been ideal for the role of reporting a suspect car-bomb if the only purpose of such a ‘report’ was to induce the Gibraltar police to sign a document authorising the SAS to employ lethal force. This is exactly what happened.)

Even if there had been a bomb, it would not have been what the soldiers claimed it was: a ‘button-job’, capable of being detonated by a single action on the part of one of the three from over a mile away. There were no examples of such a remote-control device ever having been used by the IRA other than in line-of-sight conditions, and the device later found in Spain contained the usual timing apparatus. Even if there had been such a ‘button’ and such a bomb connected to it, why would each of the three have chosen to press it rather than suffer arrest? This is an extraordinary feature of the whole affair. The Army said the reason they were certain that the bomb was a ‘button-job’ was that the IRA had issued a directive after the Enniskillen tragedy the previous year that civilian casualties were to be kept to a minimum. A remote-control device operated by somebody nearby would have been far more likely to have achieved this goal than a timed explosion. At the same time, the Army and the security services appear to have been sure that the suspects, being ‘highly dangerous, dedicated and fanatical’, would have detonated such a bomb if ‘cornered’, because they would have wanted to achieve ‘some degree of propaganda success’. So was Enniskillen an IRA failure or an IRA success? The authorities in Gibraltar appear to have seen it as both, but consecutively, the first to justify their belief as to the nature of the bomb, the second to justify their belief as to how the IRA would use it.

Given the Army’s own judgment that they had a fanatical trio on their hands, each armed with one of these terrifyingly simple buttons,why was the area around the ‘bomb’ not immediately cleared of civilians when the suspect car bomb was‘reported’? The extraordinary explanation offered by the authorities was that there was a ‘shortage of available manpower’. How much manpower does it take to shout ‘bomb!’?And even if one accepts this story, one would want to know why the arrest order was not delayed until such an evacuation had been effected. Even more to the point, why had the three not been arrested at the border, or before they had put the ‘bomb’ in position? The authorities later claimed that earlier action might have raised ‘suspicion in any unapprehended members’ of the IRA and would have left ‘no evidence for the police to use in court’. But the authorities already appear to have known that there were only to be three members in the IRA’s active service unit, and surely evidence would not have been difficult to find if the risk to Gibraltar’s population posed by the IRA had been as great as the Army said they believed it to be. That ‘evidence’ had not changed in any way when – immediately after being told about the ‘car-bomb’ – the Commissioner of Police was prevailed on to authorise intervention by the SAS. The military had prepared in advance the following directive for their civil superior to sign: ‘I, Joseph Luis Canepa, Commissioner of Police, having considered the terrorist situation in Gibraltar and having been fully briefed on the military plan with firearms, request that you proceed with the military option which may include the use of lethal force for the preservation of life.’ This was questionable language in which to couch what was supposedly an instruction to arrest.

All the contradictions and inconsistencies in this sequence of events would be instantly resolved if it had been the British intention all along to execute the three potential bombers. The loose ends and inadequate explanations that litter the official story would be transformed by the existence of such a plot into coherent aspects of a rational plan of action. The alternative looks like a tale of appalling professional incompetence and official stupidity. The European Court of Human Rights was faced with a choice between deliberate murder, justifiable homicide and culpable negligence. As regards the first of these, the judges were unanimous that it has not been established that there had been ‘an execution plot at the highest level of command in the Ministry of Defence or in the Government’ or that the SAS soldiers had been ‘so encouraged or instructed by the superior officers who had briefed them prior to the operation’. Nor did the judges find evidence of ‘an implicit encouragement by the authorities or hints and innuendoes to execute the three suspects’. The Court even went so far as unanimously to vindicate the killers themselves who had honestly believed in the light of what they had been told that it had been ‘necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life’.

By the bare majority often to nine, however, the Court rejected the second option – justifiable homicide – and found in favour of the third, holding that, having regard to all the circumstances, it was clear that the authorities had been so careless in the way they had set up and implemented the arrest operation, and so slipshod in their overall planning, that the SAS men they sent in had been effectively left with no option other than to kill, and that because of this it was right to conclude that the victims’ right to life had been wrongfully breached. The British Government was vindicated in all respects exceptits competence. It was not so much a case of ‘Who dares loses’ as of ‘Who fumbles kills.’

2. British ministers reacted to the judicial defeat with their now habitual splutterings about foreign judges and British sovereignty. The Secretary of State for Defence boasted about the SAS on a political platform in a way which (one hopes) would have failed the psychological entry tests for the organisation he was applauding. A subtler Tory response came from the former Foreign Secretary Lord Howe, who suggested that the case was further evidence of the need immediately to make the European Convention on Human Rights part of UK domestic law, so that its terms could in future be applied by British judges sitting in ordinary cases in Britain, without the need for constant recourse to a bench of multinational juristic masters. The apparent inconsistency of allowing Strasbourg through a door that is at present firmly closed to the home judiciary has driven many before Lord Howe to call for incorporation of the Convention almost as though it were a simple matter of logic. Writing in this paper some months ago, Stephen Sedley considered the off-the-shelf solution of incorporation of the European Convention’ to head the list of possible reforms in this area ‘if only on the practical ground that adherence to a set of standards enforceable on the state by an international tribunal but not by its own citizens in its own courts makes no sense at all’ (LRB, 11 May).

Others have chosen to present the reform in romantic rather than pragmatic terms, as the means whereby Britain finally achieves its own charter of human rights. It is for this reason that the idea has long been Liberal Party dogma and it is fast becoming one of the new Left’s new orthodoxies as well. The (new) Labour Party is now committed to the change, a point confirmed by Lord Irvine of Lairg in his recent address to the Administrative Law Bar Association. Incorporation attracts the support of such senior judges as the Lord Chief Justice, Lord Taylor and the Master of the Rolls, Sir Thomas Bingham, and just about every pressure group in the country seems devoted to the cause. The only people standing against this grain would appear to be those Tories who happen to be in power, and this to many is yet another (perhaps a conclusive) argument in its favour.

The consensus of opinion in favour across both the political spectrum and the three branches of government is certainly extraordinary, but it is not entirely surprising. There is a compelling attractiveness about any instrument brash enough to describe itself as being concerned with protecting ‘human rights and fundamental freedoms’. Who could possibly be against ‘human rights’, the new moral panacea of our supposedly post-socialist world? Whatever about the internal consistency of the judgment, the European Court in the Gibraltar case has unquestionably made it more difficult for the state to arrange, or be careless as to, the killing of its own citizens, and it seems natural for civil libertarians to try to free the courts to perform the same vigilant role here. The British Constitution seems in contrast so out of date, so un-European, with its antidiluvian emphasis on remedies and Parliamentary sovereignty and its vulnerability to the sort of illiberal authoritarianism that has ruled Britain for over sixteen years. As the Victorian jurist A.V. Dicey once wrote of Irish Home Rule, ‘vague ideas which have obtained general currency, are, in spite of their inaccuracy, the outgrowth for the most part of reasonable feeling.’ The Tories’ apparently perpetual hold on office has led many to convince themselves that the nation is starved of freedom and that it is our constitution rather than our votes that are to blame.

Any dish looks delectable to the diner who believes he is starving. The European Convention is a half-baked meal that would leave us more malnourished than ever. Its enactment would do little to protect freedom for ordinary people. It would make our nation’s rulers evenless accountable and representative than they are at present. It would make next to impossible any radical egalitarian change of our society. What it would lead to would be a tidal wave of litigation that would produce a few minor victories but which would be largely irrelevant and counter-productive to true civil libertarian Causes. The evidence is all around us, in the judicial record on such issues, in the nature of the Convention document itself and in the experiences of other, similar countries such as Australia and Canada that have headed or are heading down the same track. The arguments in favour of the change do not bear critical examination. It is a mystery why this debate seems up to now to have gone by default. One would have expected true defenders of liberty and freedom to have been naturally hesitant about associating themselves too enthusiastically with a ‘human rights’ reform, the main supporters of which are lawyers and the senior judiciary.

3. The mildest version of incorporation would only give the judges additional criteria with which to oversee executive discretion, a task that the courts here already have well in hand, as Michael Howard and other ministers would be the first angrily to testify. This is not the prize that most advocates of the Convention are after. What excites them is the notion that after incorporation the judiciary would be able to strike down Parliamentary legislation on the basis of its infringement of the Convention’s version of ‘human rights’. This strong version of the reform inevitably raises full-square the democratic dilemma which is the central weakness in the case for change.

It is true that the dormant UK Constitution is in desperate need of reinvigoration: devolution, stronger Commons’ committees, decent local government, reform of the House of Lords, electoral reform (above all) come immediately to mind. It is hard to see where incorporation of the Convention fits in this democratic agenda. It may be an old-fashioned question, but how can giving more power to unelected, unrepresentative and unaccountable judges be good for the health of our democracy? The cleverer advocates of the change have long since learned to call democracy by a new name, ‘majoritananism’, as though there were something vulgar and naïve about majority rule. The problem with Britain is precisely that we have been governed by a minority (about 43 per cent of those who vote) for far too long. We need to secure ‘majoritarianism’, not surrender our future to a group so small that it makes even 43 per cent look like an overwhelming mandate. It is no answer to a democratic deficit to double it.

It could be said in answer to this that it is worth plunging into these deep anti-democratic waters as the price we have to pay for the true freedom that the European Convention would deliver. This is where the argument for incorporation is at its most deceptive. The European Convention is far from being the benevolently neutral rights instrument that its disciples claim. Its provisions are an odd combination of ideological fervour and textual vagueness. As far as the first of these is concerned, the Convention is a deeply ideological instrument to the extent that it protects such freedoms as the right not to belong to a trade union, the right to ‘the peaceful enjoyment of ... possessions’ and ‘the right of parents’ to ensure that the education of their children shall be ‘in conformity with their own religious and philosophical convictions’. (It is little wonder that the Liberal Democrats are so keen on the document, since it is exactly the sort of election manifesto that a lawyer might produce on their behalf.)

Even from its Strasbourg base, and qualified though the property right is, the Convention has already exerted a powerful influence on the new Labour Party, narrowing the political options for the leadership on such fundamental issues as the renationalisation of British Rail and the reform of Britain’s divided educational system. The Independent Schools Information Service has already taken the precaution of securing a legal opinion to the effect that even to remove the charitable status of Britain‘s public schools would be in breach of parents’ ‘human rights’ under the Convention. Perhaps Tony Blair welcomes being constrained in this way, looks forward to being able to blame the Attorney General in the next Labour Government for stopping him from being as radical as his comrades would like him to be. But such issues as property ownership, privatisation and education are the meat and drink of politics, not law. By foreclosing options in whole spheres of political life, the Convention already casts this shadow over our future ministers’ freedom of manoeuvre. If in corporated it would represent the victory in perpetuity of one particular political perspective.

On the other hand, where the vital freedoms of thought, expression, assembly and association are concerned, the Convention is so riven with qualifications that it has been next to useless. Take as an example the cause célèbre of the authoritarian Thatcherite period from which the case for incorporation is said to derive so much Of its force: neither the GCHQ ban on trade unions, the media ban on reporting Northern Ireland nor the police ban on CND marches through London for a whole summer was able even to get to the Court when they were taken to Strasbourg by aggrieved but misguidedly optimistic litigants. Even the ludicrous Spycatcher injunctions were nearly upheld by the judges, with publication in the United States being the only reason the Court thought they should be lifted here. It is probable that if the killing were still going on in Northern Ireland, the Gibraltar vote would have gone the other way, just as the Court resiled from its ruling on seven-day detention when assured by the Government that the Northern Ireland crisis represented a ‘public emergency threatening the life of the nation’.

On the few occasions that it is secured on an important issue, victory in Strasbourg cases invariably depends on a lottery-like judgment as to whether some admitted restriction on our freedom is or is not ‘necessary in a democratic society’, a decision that is determined (it might be thought ironically) by the judges themselves. Even cases on such an apparently clear issue as the right to life can turn, as did the Gibraltar verdict, on a single vote on a bench of 19, making the judges look less like a court bench than a micro-Parliament. (Speaking of the ‘right to life’, does Article Two include the foetus? If we did incorporate, there is little doubt that we would soon find out, in a challenge from a ‘prolife’ group to the provisions of the Abortion Act.)

Even allowing for all this, advocates of incorporation could still strive to justify their anti-democratic (sorry, anti-majoritarian) tendencies by pointing to the British judiciary as being worthy receptacles of the trust and power that would inevitably flow in their direction. While some disciples cling to a millenarian belief in a better (distant) future of radical English judges, not even the greatest fans of the courts would claim that history is on their side. It was probably not his vision of the British judges as defenders of freedom that caused Lord Howe to call for incorporation. Indeed, in an infamous case arising out of the conflict in Northern Ireland the Law Lords went so far as effectively to legitimise the killing of unarmed IRA suspects whose only crime was to refuse to stop and submit to army questioning. This nation’s history is made up of a succession of struggles for rights, from the Stuart despotism, through the suffragette movement, the General Strike and the hunger marches to the more recent miscarriage of justice scandals, and the judges have throughout been on the side of authority and conservative reaction. There have been and continue to be exceptions to this, of course; the judicial atmosphere is sometimes more liberal in the sense that it is less astringently conservative. Having been active legitimisers of the authoritarianism of late Thatcherism, the courts have rediscovered a few liberal instincts now that the Government is weak and insecure, but not enough to provide succour for our contemporary civil libertarians, the animal rights and environmental groups and motorway protesters who are still regularly defeated in and jailed by the courts. The advances that there have undoubtedly been have been in the mainstream of public law and the criminal process. It would take a mass conversion of Pauline proportions to wrench any English Bench away from its ancient roots in a deferential and authoritarian Establishment culture, and transform it into an agent of radical, civil libertarian revolution.

Many of the more radical protagonists of incorporation admit that it is first essential to ‘reform the judiciary’, presumably so that we can like better those whom we would have exercise this unelected and unaccountable power over us. In the real, unfair and unequal world in which we live, any such reform is unlikely to happen, for the simple reason that it would be hysterically opposed by the judges, not least by the law lords (past and present) who hang around the House of Lords, and who therefore exercise immense political clout. Even the mild reforms suggested by the Lord Chancellor in 1989 were savaged in the Lords, where no less a figure than the then Lord Chief Justice likened them to the oppression wrought by Nazi Germany.

If some sort of reform were to sneak through, it would in all probability merely deliver different versions of the conservative type that is today‘s judicial office-holder. Such an eventuality would be guaranteed if the selection of judges were to be vetted by a professional panel as some suggest, since this would make it far more difficult for a reforming Lord Chancellor, such as the present incumbent, to exercise his or her patronage in an imaginative way. We would be left with an array of distinguished versions of the same monochrome legal personality, but drawn from the Bar, the solicitors’ profession and academia rather than from the Bar alone. The oligarchy would be broadened, not democratised. Nor should it be otherwise. The kind of exciting maverick figure who would spice up the Bench should be standing for Parliament, not wreaking havoc (even moral havoc) in the courts. The objection to such a judicial role in our lives is one of democratic principle. It does not matter whether they are barristers, solicitors, philosophers or retired miners, or whether they are lesbians or gay, or black or white. The objection is to the idea of such power, not merely to the class or gender or race of those who would exercise it. It is the business of judges to uphold the law, not to subvert it for moral gain. We should not ask judges to be proxy revolutionaries transforming society on our behalf.

4. Speaking of the real, unfair, unequal world into which this Convention would be introduced reminds us of another question that must be considered before the document glides effortlessly into our constitution. Who would use this tremendous new power in the courts? The popular image is of the needy individual battling heroically and successfully against the odds, but the reality might prove rather different. Since the start of 1994, the European Court of Human Rights has helped Scottish prisoners to launch appeals against long terms of imprisonment and it has had some useful things to say about the judicial process in an odd case on audibility in the court room. There is the Gibraltar decision as well of course. But the Court has also upheld the exercise of draconian arrest and detention powers under Northern Ireland‘s emergency law, interfered in the sensitive issue of childcare decision-making in Scotland and upheld the convicted drugs offender Peter Welch’s claim that the confiscation order of £59,914 imposed on him violated his rights under the Convention. In March 1994 the AlFayed brothers took a legal team of six to argue (unsuccessfully) that the DTI report into the House of Fraser had infringed their human rights, and later the same year Air Canada nearly persuaded the Court (the vote was live to four) that the temporary seizure of one of their aircraft as part of a drive against the importation of illegal drugs infringed its human right to the enjoyment of its (corporate) property. Cases that have yet to be decided include ex-Guinness chief Ernest Saunders’s challenge to the fairness of his trial, an attempt by a property-owner to have an order to demolish a building he erected without planning permission set aside and an argument from the men convicted of marital rape that their convictions were obtained in contravention of their right to be protected from a retrospective law.

All these facts prove is that human rights litigation is like life, open to be enjoyed by all but particularly likely to be litigated to the full by those with wealth and influence on their side. At least at present our supposedly outmoded Parliamentary sovereignty allows the public interest an unchallengeable final say where the issue is thought important enough to warrant an Act of Parliament. But if we were foolish enough to give the lawyers this new ‘human rights’ weapon with which to topple our democratic judgments, it would be precisely in important areas of public policy that legislation would be most vulnerable to aggressive litigation by corporate and other powerful groups, anxious to win in court battles what they have already lost in the political arena. To those who think this speculative scaremongering, here are a few comparative examples. After Watergate, the US system of government was briefly galvanised into enacting legislation which sought to limit the expenditure of political campaigns, in the name of a fairer and more equal democracy. The Supreme Court used the right to free speech to destroy the breakthrough, holding that the ‘concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.’ This was 1976, since when we have witnessed in the US the complete triumph of means over merit.

A similar case in Australia three years ago threw out legislation which prohibited broadcasting restrictions during election periods. Again, it seemed, such commercial speech was part of the fundamental right to ‘freedom of expression’ that the Court had recently ‘discovered’ and which it was now determined to protect. Especially poignant in retrospect were the remarks that an Australian minister had earlier made by way of defence of the legislation in the New York Times, to the effect that advertising was not ‘“free” speech, but very expensive purchased speech, available only to those who possess the financial means to buy it’. The minister had boasted that his government had ‘decided not to wait until influence-buying or corruption becomes entrenched in our system, or until the day arrives when only millionaires can afford to run for office’. But he was a mere servant of democracy; the Australian judges have made themselves its masters.

In September the Supreme Court of Canada handed down a decision that should be compulsory reading for all advocates of a British Bill of Rights. Canada is frequently pointed to by advocates of incorporation as a place from which we can learn, because it enacted its own Charter of Rights in a fanfare of optimism just 13 years ago. But this decision got almost no publicity here. This is hardly surprising, given that by a majority of five to four the Court struck down Canada’s legislative ban on tobacco advertising as an infringement of the tobacco companies’ ‘right’ to ‘free speech’. The efforts of the Canadian Heart and Stroke Foundation, the Canadian Cancer Society, the Canadian Council on Smoking and Health, the Canadian Medical Association and the Canadian Lung Association to persuade the court to uphold the victory they had already won in the democratic arena proved fruitless. The victorious litigants included R.J.R. McDonald Inc. and Imperial Tobacco. The unlucky losers were the Canadian people, whose commitment to human rights now requires them to expose themselves to the propaganda of the nicotine pushers.

All of these judgments could easily happen here. The European Convention only allows restrictions on freedom of expression where this is ‘necessary in a democratic society’, and who can say that restrictions on campaign funding, tobacco advertising and the like are ‘necessary’ in this specific way? Apparently democratic countries like Australia, Canada and the United States now (thanks, of course, to the courts) carry on without some or all of them. Human rights jurisprudence is made up of case-law from all around the world and these decisions would exert a powerful influence on the English Bench from the moment that incorporation of the Convention made them worth citing. Standing in the wings are immensely resourced corporations willing to defend to the full their ‘human rights’. In a speech to the Chartered Institute of Marketing last month, Maurice Saatchi said of proposed controls on advertising that it was ‘ironic that just as we begin to enjoy the benefits of the democracy of information, some people are prepared to impose this dictatorship of suppression. In its threat to our fundamental right of free speech it resembles the arguments of those who launched the fatwah against Salman Rushdie.’ Mr Saatchi went on to describe the proposed restrictions as ‘an “adwah” against our right to free expression through advertising’. Referring specifically to the Canadian judgment Saatchi declared his hope that ‘everyone who believes in free expression will resist these proposals.’

No doubt there will be many like Mr Saatchi whose commercial and personal interests will happily coincide in the protection of their ‘human rights’. They will have the money to pay the lawyers to take their ‘human rights’ out of the constitutional ether and turn them into political and economic reality via a judiciary trying its best to protect ‘freedom’. The rest of us are unlikely to be so lucky. Even if an adequate legal aid budget were forthcoming, it would not be justifiable to pour so high a proportion of the state’s limited resources into litigation, particularly if this meant fewer schools and a worse national health system. Lord Woolf has already warned barristers that their traditional payment system ‘could kill the golden goose’ that the present system offers lawyers, and a former chairman of the Bar’s legal aid and fees committees has attacked as ‘indefensible’ the enormous rise in legal costs.

It is because of the scandal of lawyers’ fees that there was so little political resistance to the recent controls on legal aid spending pushed through by the Lord Chancellor. It is very unlikely that either a Labour or a Conservative Administration would now give the lawyers a freshly issued blank cheque to sue it to a political standstill. There will of course be some ‘public interest’ litigation and a few heroically selfless lawyers, but after enactment of the European Convention, the law courts would more than ever resemble their near-neighbour the Savoy, free to enter but impossibly expensive to use.

5. Courts are, of course, vital to a healthy democracy and the rule of law is neither to be scorned nor deprecated. The fact that the judges here have dealt such strong blows to ministerial despotism in recent years is to be unequivocally applauded. These are courts that know their place, that deploy their creative talent to ensure that powerful ministers operate within the four corners of the law, a law that is developed and interpreted by the judges, but not created or defined by them. This is the vital point. There is a tension between the courts and Parliament but the trump card must always remain with the democratic branch. The enactment of law is the responsibility of all of us, as citizens, as voters and (some of us) as elected representatives. This is a power that previous generations have fought and died for. There is much that needs to be done to re-energise our democracy, and much that Labour and the Liberal Democrats have separately promised to do. Incorporation of the European Convention should never have sneaked onto this agenda. It would be a move in the wrong direction along the wrong road, into a legalistic cul-de-sac.

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Vol. 17 No. 23 · 30 November 1995

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

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

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,

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

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