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 18^th 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.