Blustering over the European Convention on Human Rights

On why we should op­pose those who wish to take the UK out of this bour­geois system.

One would think that it’s the Battle of Britain all over again. On 21 November 2012 the Daily Mail car­ried the head­line “Defiant Chris Grayling says Britain can ig­nore Strasbourg fines if we ban pris­oners from having the vote”. Cameron said that the idea of en­fran­chise­ment of any pris­oners made him feel “phys­ic­ally ill”.

Nonetheless, on the same day, 21 November, Grayling in­tro­duced a Bill of­fering at least three op­tions for MPs to vote on: the right to vote for pris­oners serving four years or less, the right to vote for pris­oners serving six months or less, or no right to vote at all. And Joshua Rozenburg com­mented on 22 November that by giving this choice the Government ap­peared to be showing re­spect for the rule of law.

We have seen bluster fol­lowed by climb-​down already this year. In April 2012 the UK or­gan­ised a “high level Conference on the fu­ture of the Court” in Brighton. Cameron pro­claimed be­fore­hand that he would wrest powers away from the Strasbourg Court. However, pro­posals in a paper drafted by the UK — but leaked by France — which would have made an ap­plic­a­tion to Strasbourg vir­tu­ally im­possible, were watered down at the last mo­ment, and Cameron did not even speak at the summit.

Nevertheless, many Tories are as anxious to de­nounce the European Court of Human Rights (“ECHR”) and leave the Council of Europe, citing cases such as that of Abu Qatada, as they are to exit the EU.

What is going on? Should we op­pose them?

First, some clarity is re­quired as to the nature of the ECHR. Peter Oborne ar­gued in October 2009 that the Human Rights Act 1998 (“HRA”), which par­tially in­cor­por­ated the ECHR into UK law, “is a thor­oughly Conservative piece of le­gis­la­tion, as a matter of his­tory, of law and of philo­sophy.” He added that the rights en­shrined in the Act are taken dir­ectly from the ECHR. The ECHR was in­spired by Churchill, and drafted by British law­yers under the guid­ance of David Maxwell-​Fyfe (later Conservative Lord Chancellor Kilmuir). The UK was the first state to ratify the ECHR, on 8 March 1951. Kilmuir later ar­gued that the right of in­di­vidual pe­ti­tion was open to con­sid­er­able abuse, and that its ex­ten­sion to the colonies would be un­wise as they were still too “polit­ic­ally im­ma­ture”. See below.

The cre­ation of the Council of Europe on 5 May 1949 was a product of the Cold War. The UK swal­lowed its re­ser­va­tions con­cerning a court with ob­lig­atory powers, for the sake of solid­arity with nine other Western European states in the Cold War. Indeed, the Council of Europe has been cor­rectly de­scribed as the “ideo­lo­gical coun­ter­part of NATO”.

What was the ideo­lo­gical battle­ground? The ECHR con­tains a list of clas­sical “first gen­er­a­tion” civil and polit­ical rights, the rights con­tained in the 1789 French Declaration of the Rights of Man and of the Citizen — to be pre­cise, the rights of white men. The right to private prop­erty is con­tained in the First Protocol to the ECHR. These are the rights cri­ti­cised so sharply by Karl Marx in his 1843 On the Jewish Question, as a result of which the sole bond holding human be­ings to­gether is “the pre­ser­va­tion of their prop­erty and their ego­istic selves.” These were the rights of the bour­geois revolution. Indeed, by rat­i­fying the ECHR the UK could be said to have brought the country into the 18th century.

The USSR and its al­lies on the other hand in­sisted on the primacy of so­cial and eco­nomic rights, en­shrined in the Stalin Constitution of 1936 and the Brezhnev Constitution of 1978. Chapter X of the Stalin Constitution was en­titled “Fundamental Rights and Duties of Citizens”, and started with the right to work, fol­lowed by the rights to rest and leisure, so­cial se­curity, free health care, free edu­ca­tion, and equal rights for women. Civil and polit­ical rights to freedom of speech, freedom of the press, freedom of as­sembly, and freedom of street pro­ces­sions and demon­stra­tions were guar­an­teed only “in con­formity with the in­terests of the working people”; that is, not at all. The USSR’s pro­pa­ganda in­sisted, with some jus­ti­fic­a­tion, that it was im­ple­menting so­cial and eco­nomic rights. The Western European states were there­fore ob­liged to demon­strate that they were equally ser­ious about civil and polit­ical rights.

If the ECHR and the HRA simply in­stan­tiate bour­geois rights, why are they worth defending?

First, the French Declaration was a re­volu­tionary doc­u­ment, and the bour­geois re­volu­tions were re­volu­tionary, as Neil Davidson has re­cently ar­gued. The heavens were stormed. The un­pre­ced­ented list of civil and polit­ical rights still con­tain re­volu­tionary sym­bolic cap­ital, when they are picked up and put to use by the op­pressed — re­cently by Irish, Kurds, Chechens and others. One proof of this is Britain’s cen­turies long res­ist­ance to them, starting with Edmund Burke’s tirade against the Declaration as de­structive of all es­tab­lished freedom, and finding full ex­pres­sion in A. V. Dicey’s con­dem­na­tion of the French list of rights as against English case-​law.

Second, E. P. Thompson re­minded us that “… law has not only been im­posed upon men from above; it has also been a me­dium within which other so­cial con­flicts have been fought out.” I noted above how Kilmuir warned of the ef­fect of the ECHR on the colonies. Britain did not grant the right of “in­di­vidual petition” — the right to com­plain to Strasbourg — until 1966. The first inter-​state cases brought to Strasbourg were Greece v UK I and II  in 1956 – 57, com­plaining of tor­ture and other vi­ol­a­tions by British troops sup­pressing the EOKA move­ment. In 1973 in East African Asians v UK Britain was con­victed of ra­cist dis­crim­in­a­tion, and in­human and de­grading treat­ment. And in 1978 in an­other inter-​state case, Ireland v UK, Britain was found to have sub­jected Irish de­tainees to in­human and de­grading treatment.

To con­clude. Time after time the ECHR and now the HRA have provided op­por­tun­ities for the op­pressed to mo­bilise a dis­course which has not ceased to hold a re­volu­tionary con­tent. That must be reason enough to op­pose those who wish to take Britain out of this very bour­geois system.

Bill Bowring is Pro­fessor of Law at Birk­beck Col­lege, Uni­ver­sity of London.

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