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.