The European Convention on Human Rights was a wonder of its time, but that time was 1950. It was celebrated by Churchill as a bulwark against the encroachment of communism in Europe. Communism may now be dead, but in 1998 (when Labour needed to deliver on an election promise), the European Convention was simply incorporated into our law without amendment.
Titus Oates: No more "cruel and unusual punishment" (Getty Images)
It has been good in parts, but its deficiencies are becoming apparent and its lowest common denominator language has started to do some damage, especially to freedom of speech. The time has come for an Act that reflects our contemporary values as well as our historic struggles for liberty: in short, for a British Bill of Rights.
Such a law would replicate much of the Convention, for the simple reason that most of its provisions derive from battles for liberty first fought successfully in this country. That is one important reason for a British Bill — as a document that will teach our children to take pride in their heritage and history. Take the prohibition on torture: how many know that it was abominated by the common law and abolished along with Star Chamber, while it flourished for centuries afterwards in Europe, solemnly ordered by French and Italian judges? How many can trace freedom of speech to John Milton and "freeborn John" Lilburne, and later to Erskine's defence of the brave booksellers who sold the work of Tom Paine? Or the development of fair trial to the forensic genius of William Garrow, or how the right to hold governments legally accountable for abuses of power began with John Wilkes and Chief Justice Pratt? These rights should be recognised, in our schools as in our courts, as living parts of our own culture, rather than remain lost in the uninspiring Euro-prose of a "European" Convention.
Besides, the need in 1950 for uniformity meant that some of our traditions had to be jettisoned — most notably trial by jury, an Anglo-American system that had found no place in the Code Napoléon. The first judge-only trials for serious criminal offences such as armed robbery have just begun at the Old Bailey, thanks to a law that parliament could not have passed had this fundamental right ever been written into our constitution. Academics are fond of claiming that we have an "unwritten constitution" but that is oxymoronic: without an entrenched Bill of Rights, there is no liberty in Britain that is safe from the meddling of politicians.
The European Convention also failed to include the rights Parliament won by the "Glorious Revolution" in 1689, which were included in the Bill of Rights of that year. Its terms were ignored by ex-Speaker Michael Martin, for example, when he permitted Scotland Yard to raid the MP Damian Green's offices, and by two High Court judges who granted injunctions to Trafigura which would have prevented reports of proceedings in Parliament. These rights are a vital part of our constitutional history, but will continue to be overlooked unless written into a constitution, or at least put in a modern statute.
The 1689 Act also had rights for ordinary people (that condescending phrase that lawyers use of people who are not lawyers). Most importantly, it prohibited "cruel and unusual punishments". This was the result of public outrage at the inappropriate treatment of a clergyman (Titus Oates) who was whipped, pilloried and defrocked for perjury. It was meant to ban punishments that do not fit the crime and cause unnecessary mental anguish, a precise description, you might think, of the fate of Garry McKinnon, the hacker with Asperger's who faces up to 60 years in an American prison for accessing US army computers and leaving a polite message of protest against US foreign policy and Guantanamo Bay. If tried in Britain, where the crime was partly committed, he would in all probability receive a non-custodial sentence, especially since his actions were motivated by an undiagnosed disorder over which he had no control. Why is he being extradited in breach of the 1689 Act ban on cruel and unusual punishments?
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