Be careful what you wish for

Stephen Sedley

  • The Conservative Human Rights Revolution: European Identity, Transnational Politics and the Origins of the European Convention by Marco Duranti
    Oxford, 502 pp, £59.00, February 2017, ISBN 978 0 19 981138 0

‘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.