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Be careful what you wish forStephen Sedley
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Vol. 40 No. 16 · 30 August 2018

Be careful what you wish for

Stephen Sedley

2168 words
The Conservative Human Rights Revolution: European Identity, Transnational Politics and the Origins of the European Convention 
by Marco Duranti.
Oxford, 502 pp., £59, February 2017, 978 0 19 981138 0
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‘The​ United Kingdom played a major part in drafting the convention,’ said the Blair government’s paper introducing the bill that became the 1998 Human Rights Act, ‘and there was broad agreement between the major political parties about the need for it.’ The Panglossian account of the 1950 European Convention on Human Rights – that it was essentially uncontentious and genetically British – is the orthodox narrative that the Australian scholar Marco Duranti sets out to deconstruct. His copiously evidenced account, drawn from British, French, German, Italian, Dutch and US archives, is that the convention was an individualistic and conservative project, devised outside the offices of governments and the chambers of parliaments and designed to stem the postwar tide of socialism and statism. Through it, he argues, ‘conservatives enshrined human rights as European values in the service of a nostalgic Christian vision of the European legal order, not a liberal cosmopolitan one.’ So if to modern readers the European convention, which includes practically no social or collective rights, looks like a 19th-century manifesto of liberal individualism, it’s because that’s what it was: reactionary in the best and purest sense of the word. A young French journalist, Jean-Jacques Servan-Schreiber, wrote in Le Monde, as the draft moved towards finality: ‘Our parliamentarians at Strasbourg are playing at being lawyers from 1789 and liberals from the 19th century.’ It is time’s whirligig which in the last half-century has spun the convention round, making it a shield for the dissident, a weapon for the unrespectable and a bane for state authorities, a living reminder to be careful what you wish for.

Who then was responsible for drafting the convention and breathing life into it? It was principally the work of the European Movement, a right-wing non-governmental organisation which came into being in 1949 as the successor of a coalition of European anti-statist groups, the Joint International Committee of the Movements for European Unity. Its star was Winston Churchill, out of office but by no means out of ideas or charisma, and now renewing his old attachment to the idea of a federal Europe. In particular Duranti credits Churchill with having ‘removed the tarnish of Axis propaganda from European integration’. The European Movement’s director of operations was Churchill’s son-in-law, Duncan Sandys. Its legal draftsman was Sir David Maxwell Fyfe QC, a right-wing libertarian with potent credentials as a principal prosecutor at Nuremberg. It was Maxwell Fyfe who told a Conservative Party rally in 1948 that just as Nazism had crept first gradually and then irresistibly into German life, so in postwar Britain the onward march of the state was such that those ‘who followed Disraeli or Gladstone … would never believe that such things could happen in England at peace. All over Europe, socialism is proving no defence against communism’s attack on the triple European heritage of Christianity, mental freedom and even-handed justice.’

Maxwell Fyfe’s speech came in the triumphal wake of the Congress of Europe, held in The Hague in May 1948 with Churchill as its honorary chairman and 750 delegates from 17 European countries. Although the congress possessed no governmental authority, its cultural committee drew up a charter of fundamental rights to be enforced by a continental supranational court. This was an element on which the British members insisted, though only as between states. The committee’s orientation comes out clearly enough in its adoption of the Vatican’s brazen claim that the prioritisation of human personality ‘had its origin in Christianity but was accepted and reaffirmed by humanism’. The congress also called for a tariff-free trade zone, a common currency and much else that now sets the teeth of Churchill’s successors on edge.

It was out of the Congress of Europe that the European Movement emerged. In February 1949 it held an open-air rally in Brussels, addressed by Churchill, at which the Belgian left turned out with leaflets asking why ex-Nazis were on the platform (the eventual inclusion of West Germany was part of the movement’s agenda) while ‘the victors of Stalingrad’ were not. The answer was plain enough: Europe, for the movement’s purposes, began at the Pyrenees and ended at the Iron Curtain. Insofar as its members shared an ideology, it was the Catholic concept of ‘personalism’, a model rejecting both centralised state power and bourgeois individualism and nostalgically seeking a deferential society bound together in family-based units and guilds. Duranti notes that Churchill, tellingly, was in these years confining his advocacy to ‘fundamental personal rights’, not only avoiding but on occasion deleting references to human rights.

Whatever their individual beliefs (and a number of them had unsavoury pasts in prewar Europe and Vichy France), the European Movement’s members shared a broad political objective: the creation of a unified, democratic, capitalist Western Europe. They were also united in the view that democracy must not get out of hand. It followed, first, that Franco’s Spain and Salazar’s Portugal, in spite of the Vatican’s desire to see them included, had to be kept out if the project was to have any credibility (though Robert Boothby, another of its protagonists, suggested that Salazar might ‘concoct a special brand of Portuguese democracy’ to get Portugal under the wire). It also followed, particularly in the view of British conservatives and French Catholics, that some supranational constitutional restraint was needed on what even elected governments might do.

By 1948 the UK’s Labour government, in particular its foreign secretary, Ernest Bevin, had started to realise that unless it too took up the cause, Churchill and his team would become the standard-bearers of individual rights. Yet Labour had no counter-agenda for constitutionally embedding rights to healthcare, social assistance, decent housing: instead it was trying make these a reality. It was in relation to the proposed Council of Europe that Bevin (a canny operator who enjoyed playing the ignoramus to his snooty civil servants) told his private secretary that if they opened that Pandora’s box there was no knowing what Trojan horses would jump out. But he agreed the UK should go for the ride. ‘We’ve got to give them something,’ he said to Christopher Mayhew, who was troubled by the attention Churchill had attracted at The Hague, ‘and I think we’ll give them this talking shop in Strasbourg.’

It was the inauguration in May 1949 of the intergovernmental Council of Europe that finally gave the human rights convention legal authority and political lift-off. The council, which today has 47 member states, started with ten: France, Ireland, Italy, Belgium, Luxembourg, the Netherlands, Norway, Sweden, Denmark and the UK. Its constitutive treaty required every member to ‘accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms’. By July that year the European Movement had submitted to the council’s committee of ministers a draft which in all its essentials became, the following November, the European Convention on Human Rights. It is an eloquent fact that gender was not originally included in the prohibited grounds of discrimination and was only shoehorned in at the insistence of Denmark.

Two years later, in 1952, with a Conservative government back in office, the convention’s first protocol added a qualified right to the peaceful enjoyment of private property and a seemingly innocent prohibition of any denial of ‘the right to education’ (a right not spelt out in the body of the European convention). It’s only when the second sentence of the education article is factored in that the entrenchment of religious selection in state education, in apparent contradiction of the ban on religious discrimination in article 14 of the convention, becomes apparent: ‘In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.’ This went markedly further than the provision of the UN’s 1948 Universal Declaration of Human Rights that ‘parents have a prior right to choose the kind of education that shall be given to their children.’

The dramatic inclusion in the convention of a supranational court empowered to give rulings binding on member states was not uncontentious. As Duranti says, it ran counter to the UN’s principle of non-interference, to member states’ traditions of sovereignty and to the unimpeded running of their many colonial territories. But while the labour movement in Britain had a well-founded suspicion of judges, British conservatives had come round to seeing external judicial oversight as a necessity if the collectivist ambitions of present and future Labour governments were to be held in check. For Sandys this represented a retreat from his initial preference for defending human rights by the collective use of force. The possibility that the UK under future Conservative administrations might be held to be violating human rights seemed fanciful.

It’s here, as Duranti acknowledges, that his book follows a trail blazed by the late Brian Simpson in Human Rights and the End of Empire (2001), a monumental study, archive-based like Duranti’s, of how the world’s greatest colonial power came not only to surrender a portion of its sovereignty to an international human rights tribunal but to exercise the option given by the convention of formally extending its provisions to the majority of its colonial territories, several of them in states of emergency. On balance, the Colonial Office reckoned this would enhance Britain’s standing at the UN but need make no difference to its imperial practices. Even so, Southern Rhodesia, where the law permitted forced labour, had regretfully to be omitted.

Both authors have been frustrated by the loss or destruction of much Home Office archival material; but there is plenty left in the files of the Foreign Office, which became the lead department on the premise that human rights were something we had long ago invented and were now exporting. The files include a memorandum by the FO’s senior legal adviser, Sir Eric Beckett, opposing the appointment of by far the best qualified candidate, Hersch Lauterpacht, to the UN human rights commission in 1946 on the ground that Lauterpacht, ‘although a distinguished and industrious international lawyer, is, when all is said and done, a Jew recently come from Vienna. Emphatically, I think that the representative of H.M.G. on human rights must be a very English Englishman imbued throughout his life and hereditary to [sic] the real meaning of human rights as we understand it in this country.’ Setting aside the casual antisemitism and the blithe anglocentricity, this was the stance that underpinned the UK’s negotiating position for the next four years: we had nothing to learn about human rights but a great deal to teach. It was in this lofty spirit that Britain headed the queue to sign the ECHR in November 1950 in Rome.

Initially only states could bring challenges against other states, as Ireland did against Britain over its interrogation techniques, and as Greece did over British behaviour in Cyprus. Then in 1966 the UK followed the majority of other member states in according the right of individual petition, resulting in a steady and continuing stream of claims, many of them successful, that reached full flow under the Thatcher administrations from 1979. Since 2000, when Labour’s Human Rights Act made the convention rights part of domestic law, both the convention and the court have faced repeated assaults from the same political quarter as conceived and promoted them. David Cameron announced that he felt ‘physically sick’ at the Strasbourg court’s ruling that the UK’s blanket ban on prisoners voting was a disproportionate interference with a fundamental right, evidently forgetting that people serving up to 12 months in jail can be MPs. Theresa May as home secretary solemnly recycled the myth about foreigners evading deportation because they are cat-owners. It was left to two leading Conservative intellectuals, Jesse Norman and Peter Oborne, writing in defence of the Human Rights Act in 2009, to point out that the convention was ‘Churchill’s Legacy’.

The fact that it was the Europhobe right which took the lead in orchestrating and amplifying the abuse of the Strasbourg court (in which more than one Labour minister joined) was not, however, an instance of history repeating itself as farce. It was a calculated attempt to utilise as leverage the EU Treaty’s adoption of the fundamental rights guaranteed by the ECHR, so that leaving the Council of Europe and abandoning the ECHR might render Britain ineligible to remain in the EU. But with the unexpected referendum result, the need for a rear exit disappeared, and with it most of the abuse of Strasbourg. The promised substitute, a British bill of rights, has never materialised, and for the present the Human Rights Act seems to be off the abolitionist hit-list. Indeed, with a future Labour administration now regarded as a serious possibility and public ownership back on the agenda, yesterday’s abolitionists may be about to resume the role of Churchill’s heirs.

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Vol. 40 No. 18 · 27 September 2018

Stephen Sedley criticises Theresa May for having as home secretary ‘recycled the myth about foreigners evading deportation because they are cat-owners’ (LRB, 30 August). This is not a myth. There was a ‘catgate’ case and May’s account of it, though hardly devoid of political advantage seeking, was essentially correct. I will happily supply a transcript of the case, which is not publicly available, and my commentary on it, to those who ask.

Sedley is of course right that the European Convention on Human Rights (and therefore the Human Rights Act) is Churchill’s legacy. But the implicit claim that Churchill would have intended to leave as his legacy the chaos caused by the convention and the act as they now are interpreted in UK asylum and immigration law, and the parlous state of judicial review and the danger to national security consequent on this, is not right. The currently highly successful use of the convention and the act in a process of replacing parliamentary sovereignty with judicial supremacy would, obviously, be even less part of Churchill’s intention.

David Campbell
Lancaster University

Vol. 40 No. 19 · 11 October 2018

David Campbell discerns in my review of Marco Duranti’s The Conservative Human Rights Revolution an ‘implicit claim that Churchill would have intended to leave as his legacy the chaos caused by the [human rights] convention and the act as they are now interpreted’ (Letters, 27 September). There follows a familiar jeremiad on the current state of asylum and immigration law, the ‘parlous state of judicial review’ and ‘the danger to national security consequent on this’.

Making the somewhat generous assumption that the judges are indeed causing chaos by their use of human rights and are routinely jeopardising national security by ignoring what Parliament enacts, my article not only contained no implicit claim that this was Churchill’s objective, it explicitly said the opposite: namely, that Churchill, Maxwell Fyfe, Sandys and their allies considered that ‘some supranational constitutional restraint was needed on what even elected governments might do.’ This was to take the form of an international human rights regime, to be interpreted and applied by judges, and expressly designed to put a stop to socialist and statist incursions into personal freedom. It is, as I pointed out, time’s whirligig – the disconcerting intervention of the unintended – which has brought about the situation deplored by Campbell, in which both Conservative and Labour administrations have been held, domestically and internationally, to be violating Churchill’s human rights.

As to the immigrant’s cat, a revisit (with the help of Professor Campbell’s kind offer of a copy) to the judgment of the first-instance immigration judge confirms that the cat (which was real enough) had no decisive effect on the outcome. Contrary to Theresa May’s description of it as a deportation case (deportation, in general, is what happens to foreign criminals), the case concerned the liability to removal of a Bolivian national who had entered lawfully as a student but had overstayed. By the time the Home Office caught up with him he had settled down with a partner and – yes – a cat in what the Home Office did not dispute was family life within the ambit of Article 8 of the ECHR. The immigration judge concluded that the couple had an established family life in the UK; that the partner, whose father was terminally ill, could not reasonably be expected to move with the applicant to Bolivia; and that the demands of immigration control were not strong enough in the circumstances to make removal a proportionate interference with the right to respect for family life. The cat played no part in any of this.

However, tongue visibly in cheek, the Home Office in refusing leave to remain had suggested that the cat could adapt to life abroad: ‘While your cat’s material quality of life in Bolivia may not be of the same standard as in the United Kingdom, this does not give rise to a right to remain.’ Nevertheless, the acquisition of the cat, said the immigration judge, ‘reinforces my conclusion on the strength and quality of the family life that the appellant and his partner enjoy’. On formal reconsideration, a senior immigration judge found no error of law in the judgment, adding: ‘The cat need no longer fear having to adapt to Bolivian mice.’

Whether these asides and moments of judicial levity justified Theresa May in saying in a speech ‘We all know the stories about the Human Rights Act … about the illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat,’ your readers can judge. Unlike David Campbell, I don’t for my part think ‘myth’ is too strong a word for a recycled assertion that, thanks to the Human Rights Act, an illegal immigrant cannot be deported because he has a pet cat.

Stephen Sedley
Oxford

Vol. 40 No. 21 · 8 November 2018

David Campbell seeks to support Theresa May’s ‘catgate’ comments in his response to Stephen Sedley’s article on the origins of the European Convention on Human Rights (Letters, 27 September). I was president of the Upper Tribunal when May, who was home secretary at the time, claimed that a Bolivian man had his appeal against deportation allowed by a judge of that chamber because he owned a cat. Like the lord chancellor of the day, Ken Clarke, I would have been surprised (and alarmed) if this had been the case, and promptly reviewed the decision in question. Far from being ‘essentially correct’, the home secretary’s comment was quite wrong.

The decision to allow the appeal was based on the Home Office’s own policy at that time (since rescinded) that generally permitted a student who had overstayed his limited leave to remain to regularise his position if he had been in a genuine and durable common law relationship for two years or more at the time of the decision. The nature of the relationship was undisputed and it was conceded by the Home Office’s presenting officer that there had been a failure to have regard to its own policy. The fact that the couple had acquired a cat together was the kind of circumstantial detail that the Home Office often took into consideration in assessing the existence of a genuine relationship; it was mentioned in the refusal decision and the judgment but was not the basis of the decision to allow the appeal. This was made plain by a statement from the Judicial Office issued that day and accurately quoted by the BBC on 6 October 2011: ‘This was a case in which the Home Office conceded that they had mistakenly failed to apply their own policy – applying at that time to that appellant – for dealing with unmarried partners of people settled in the UK. That was the basis for the decision to uphold the original tribunal decision – the cat had nothing to do with the decision.’

Campbell is equally wide of the mark in his comments about the ECHR and the erosion of sovereignty. Churchill and his fellow promoters of the ECHR would be perfectly aware that an international treaty to protect rights, supervised by a regional court of judges from the contracting states, would restrain the state from doing things that it had been previously free to do; that is the whole basis of international law, universal or regional, whether the prohibition is against aggressive war, the use of torture, destruction of the environment or failing to respect family and private life through unlawful or unjustified interference with it.

The application of Article 8 of the ECHR to the expulsion of non-citizens was very well-established in the Strasbourg Court’s case law by 1998, when Parliament decided to make it part of national law, and confirmed in 2000 when the UK endorsed the EU Charter on Fundamental Rights as reflecting the existing legal obligations of the UK and the Human Rights Act came into force. An over-generous judicial decision on the application of Article 8 would certainly have led to the case going to the Court of Appeal, but there was no further appeal in the catgate case as there was no error of law on the part of the judge who was applying the law laid down by Parliament, in fact on the all too familiar ground that the Home Office had failed to apply its own policies accurately.

Nicholas Blake
London NW5

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