The European Convention is no longer fit for purpose. It is time for the Lord Chancellor to enshrine our freedoms in British law
The government finds itself in the curious position of promising a British Bill of Rights without having any idea of its contents — other than that it should in some way be different to the much-maligned European Convention on Human Rights. As the latter was drafted by British lawyers and sets out basic rights that the UK acknowledges to be universal, the human rights lobby suspects that the “British” Bill is really some sort of plot to demolish our liberties, especially if “we” are poor or disadvantaged or were not born in Britain. But there would be educational advantages in a statement that recognisably reflects the constraints on government which people in this country have, over the centuries, struggled for and achieved, sometimes by fighting against each other (the Civil War) and sometimes against Europe (i.e. Hitler, Napoleon and the Pope). There are advantages too, in updating and improving the Convention, a wonder of its time (1953) but a time which has passed.
There is nothing unusual about having a domestic Bill of Rights, interpreted by a Supreme Court but with that interpretation open to correction by the European Court in Strasbourg if it offends against any of the universal rights set out in the Convention. Almost all the Council of Europe’s 47 member states have their own native Bill of Rights, usually embedded in their Constitution: Britain is alone in having neither a written Constitution nor its own statement of the freedoms guaranteed to its citizens. We have instead the Human Rights Act, which in 1998 simply incorporated the European Convention into British law. It is much misunderstood and “the culture of liberty” to which its advocates (myself included) claimed it would be conducive has not been achieved, largely because it is perceived as foreign — a perception encouraged by a hostile media and by Europhobic politicians. The Commission on a Bill of Rights, set up by the coalition, reported in 2012 in favour of replacing the Convention, in domestic law, with a British Bill of Rights. It comprised a mass of Queen’s Counsel (for which there is no known collective noun — a “purse” of Silks, perhaps) but even this Commission did not essay the most basic task of actually drafting the “British” charter that it was recommending.
The great value of a British Bill of Rights would not be so much to the legal system (where the Convention works well enough to paper over the cracks and gaps in the common law) but as a powerful symbol of British identity and values. It is an objectively ascertainable fact that this country has contributed much more to the language and content of human rights than any other, and it is time we taught our children, and ourselves, to take some pride in this achievement — of securing parliamentary sovereignty, representative government, judicial independence, habeas corpus, trial by jury and so on. A truly British Bill of Rights, rooted in our history yet encompassing human rights initiatives since 1953 that the UK has endorsed and often led, set out in language comprehensible to “ordinary people” (the patronising phrase used by lawyers to denote people who are not lawyers) might become a driver of that “culture of liberty” that the europrosaic Convention has failed to deliver. In America, their 1789 Bill of Rights remains a bedrock of civil culture. In Canada (a country which had no particular culture to speak of), Pierre Trudeau’s objective of strengthening national identity through a Charter of Rights has largely been achieved. In Britain, our children leave school believing that the struggle for civil rights began in Mississippi in 1964. It is time, and it will be Michael Gove’s task, to forge a document that will tell them otherwise.
The search for “British” values begins, as it must, precisely 800 years ago, when bad King John sloshed his way through Runnymede meadow to seal the Magna Carta. He ripped it up a few weeks later, when he felt safe from the thuggish barons to whom it had vouchsafed its stated liberties. In the 17th century it was re-imagined and re-invented by two very remarkable but very different Englishmen in the course of the struggle against Stuart absolutism. Chief Justice Coke, sacked for suggesting that the King was not above the law, became a scholarly MP whose Institutes persuaded the Inns of Court that Magna Carta was a central part of the common law. Two of its provisions deserve a place in any “British” Bill of Rights:
No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined . . . except by the lawful judgement of his peers or by the law of the land.
To no-one will we sell, to no-one will we deny or delay any right or justice.
Coke drafted an updated version of this “Great Charter of the Liberties of England” — the “Petition of Right” of 1628. It emphasised that no free citizen should be “imprisoned, confined, or in sundry other ways molested” without access to habeas corpus (the process whereby anyone who lost their liberty could challenge immediately in court the lawfulness of his detention). King Charles I pretended to accept the Petition, but then (like King John) reneged, and prorogued Parliament for 11 years. The puritan MPs came back with a vengeance in 1641 to fight for those very rights that we now regard as fundamental: the sovereignty of Parliament; representative government (at least, representative of propertied men), the independence of the judiciary, religious toleration (for Jews, Quakers and Baptists, if not for Catholics) and an end to torture. These were British (to be precise, English) achievements — torture continued as a routine part of continental law for several centuries. The Civil Wars (1642-48) left one in ten Englishmen dead in muddy fields — a greater toll than the First World War — and their sacrifices for the rights of the people against the King and his bishops deserve a reference in any statement of British liberty.
The first describably “modern” statement of rights came with the work of a second — and very different — figure, namely “Freeborn John” Lilburne, who earned this moniker when he was whipped through the streets of London by order of the Star Chamber, for importing Puritan literature. His “Leveller” movement produced “The Agreement of the People”, subject of the remarkable Putney Debates in 1647 (recently staged at the National Theatre, in Caryl Churchill’s Light Shining in Buckinghamshire). Several of its clauses could be reproduced, with only a few updates, in a “British” Bill of Rights, most notably the provision that all should be treated equally under the law:
That in all laws made or to be made, every person may be bound alike: and that no tenure, estate, charter, degree, birth or place confer any exemption from the ordinary course of legal proceedings whereunto others are subjected.
There was also a ban on conscription, which (pace Prince Harry) is a right deserving of recognition, because “the matter of impressing and constraining any of us to serve in the wars is against our freedom”. The principle that electorates “ought to be indifferently proportioned according to the number of inhabitants” might be made part of the right to democracy.
“Freeborn John” turned against Cromwell’s army junto of “tyrants, weasels and polecats” and was duly prosecuted — twice — for treason. His juries played the part ascribed to them in legal mythology, as “the lamp that shows that freedom lives”. They acquitted Lilburne, after he had addressed them for three days, from Coke’s Institutes, about the rights of freeborn Englishmen. Some years later, an Old Bailey jury refused a judge’s direction to convict the Quakers Penn and Mead, despite being locked up without food or fire or bed or chamber pot.
Anglo-American veneration of the right to jury trial dates from this time, and it is the most notable “British” right that is entirely absent from the Convention. The reason is simple: that Convention was drawn up as a “lowest common denominator” statement and juries had ceased to exist in Europe, where Napoleon had long ago abolished them. In consequence, we have no protection against a government which might decide to abolish jury trial in certain classes of serious crime, and it is surely time that we did.
The need for a Bill of Rights to protect against executive power was accepted here a century before the Declarations of the French and American Revolutions, in the 1689 Bill of Rights. It is still in force, and it contains the first reference to free speech, namely:
That the freedom of speech and debates on proceedings in Parliament ought not to be impeached or questioned in any court of place out of Parliament.
It had another useful and unique provision:
That excessive bail ought not to be required, no excessive fines imposed, nor cruel and unusual punishment inflicted.
This ban on “cruel and unusual punishment” later found its way into the US Bill of Rights and then into international human rights conventions, as a rule against torture. It provides a good example of how felicitous phrases in Bills of Rights can come to be reimagined to meet the values of later generations. (It was originally inserted as a protest against the punishment of Titus Oates, a clergyman who had been defrocked and whipped for perjury against Catholics.)
Any “British” Bill must incorporate iconic moments in Scottish history — the Declaration of Arbroath (1320), for example, which asserted independence from the English crown; and the Claim of Right (1689), which paralleled the English Bill of Rights of the same year, and the Criminal Procedure Act of 1701 which set strict limits to detention.
We spool forward a century to the revolutionary declarations of “The Rights of Man” in America and France. They were based on “natural rights” theories that never took root here, thanks to ridicule by Edmund Burke and Jeremy Bentham (“Nonsense on stilts”) and Karl Marx (“Bourgeois rights”). Instead, 19th century Britain gave the shining example of a practical “right” — not to be held in slavery — enforced by the Royal Navy up and down the coasts of East and West Africa. Bentham and John Stuart Mill gave meaning to the idea of liberty, and extended it to social rights, especially the right to free secular education. In due course the suffragettes demanded women’s rights, and later still came the right to free healthcare (the NHS) and the realisation of Magna Carta’s promise (“to no man will we deny justice”) with a comprehensive legal aid scheme.
There had been no talk of “human rights” until the 1930s, by which time Hitler was extinguishing them in Germany. It was in 1939 that a small group of British writers and intellectuals, headed by H.G. Wells and Viscount Sankey, a former Labour Lord Chancellor, wrote the first modern Convention for a “new world order”. J.B. Priestley and Barbara Wootton were members of the group, and A.A. Milne motored up from Pooh corner to help with the draft. The “Britishness” of their style stands out. They eschewed the messianic preambles of the French and American declarations in favour of the simple observation that “since a man comes into this world through no fault of his own” he is in justice entitled:
1. Without distinction of race or colour, to nourishment, housing, covering, medical care and attention sufficient to realize his full possibilities of physical and mental development and to keep him in a state of health from his birth to his death.
2. Sufficient education to make him a useful and interested citizen, easy access to information upon all matters of common knowledge throughout his life, in the course of which he must enjoy the utmost freedom of discussion.
3. That he and his personal property lawfully acquired are entitled to police and legal protection from private violence, deprivation, compulsion and intimidation . . .
And so it went on, in fine and only occasionally dated style, promising inter alia: “There shall be no secret dossiers in any administrative department”; “a man’s private house or apartment or reasonably limited garden enclosure is his castle”; “no man shall be subjected to torture, beating or any other bodily punishment, or to imprisonment with such an excess of silence, noise, light or darkness as to cause mental suffering or in infected, verminous or otherwise unsanitary quarters”.
Their charter was published in a best-selling Penguin Special, H.G. Wells on the Rights of Man, which was translated immediately into 30 languages. The Foreign Office was so taken with it that it ordered a special German version, which was dropped on Nazi stormtroopers as they stormed through France. They did not stop to read it, but President Roosevelt (a friend of Wells) did, and it contributed to his “Four Freedoms” speech and to the promise in the Atlantic Charter (January 1942) that victory would secure human rights. It was one of the drafts considered by Eleanor Roosevelt’s committee charged with producing the Universal Declaration of Human Rights — the forerunner of the European Convention.
The Attlee government should have appointed Hersch Lauterpacht, the world expert, to Eleanor Roosevelt’s committee, but the Foreign Office objected to him because he was Jewish and therefore “not British”. An amiable but ignorant trade union leader was appointed in his place; he did not notice that the first draft omitted any reference to trade union rights. It was the Australians who repaired this omission, and together with the Canadian lawyer who was the Committee’s Secretary they ensured that the end document could truly be described by Eleanor Roosevelt as “the Magna Carta for Mankind”.
The European Convention was the brainchild of Winston Churchill, who saw it as a bastion against the encroachment of Stalinism. At a rousing speech at The Hague in 1948, he advocated a Charter for a Europe “guarded by freedom and sustained by law”. So the Convention’s credentials were impeccably Conservative, even down to the fact that its main opponent was the Labour Lord Chancellor, Lord Jowitt, who preferred the plodding approach of precedent to any statement of principle. He was outmanoeuvred by the more imaginative Nye Bevan, and after the Conservatives regained office the drafting was overseen by David Maxwell Fyfe (later Lord Chancellor as Lord Kilmuir) and the Churchill government ratified it in 1953.
The Convention lay fallow, as an agreement between states, until 1966 when the Wilson government’s reforming Lord Chancellor, Gerald Gardiner, allowed the right of individual petition to the court in Strasbourg, with the UK treaty-bound to honour the judgment. There was no Conservative opposition to this step, which over time unleashed Convention rights to fill many gaps in British law. It began with a prisoner, whom the Strasbourg court insisted should be permitted to read letters from his lawyer, and really took off when the Court insisted that freedom of expression (Article 10 of the Convention) required publication of the Sunday Times investigation of the Thalidomide scandal, which British courts had banned.
Thereafter, Strasbourg acted in dozens of cases to provide remedies for human rights violations which common law could not stop and Parliament was too lazy (or too frightened) to remedy by legislation. Strasbourg decisions required law changes to end discrimination against women, against blacks and East Asians, and then against gays, and to prohibit the caning of children (in that case, against the vigorous dissent of the British judge, who said that he had been beaten at Eton and it did him no harm).
Meanwhile, the case for a Bill of Rights applicable directly in British law gathered apace: the common law was defective, and it took seven years, on average, to obtain a decision from Strasbourg. Strong opposition now came from the Left, influenced by LSE professor John Griffiths, with his book The Politics of the Judiciary. These politics, he argued, were invariably reactionary, and any Bill of Rights would give power to unelected judges appointed by Thatcherite governments to cut back traditional liberties. His thesis seemed to many on the Left to hold good, with the new Industrial Relations court and the idiosyncrasies of Lord Denning, a judge sound on middle-class values of property and freedom of speech but who could not cope with female equality and seemed to think that prisoners, trade unionists, defendants, aliens, blacks, gays and (interestingly) tax avoiders, had no rights at all. At annual meetings of the National Council of Civil Liberties (“civil liberties” were what human rights were then called) the debate see-sawed, as did Labour party policy. But with Denning’s retirement, an increasing willingness of the judiciary to upset government decisions, and the intellectual leadership of Lord Scarman and Ronald Dworkin (who predicted a “culture of liberty”) the case for a Bill of Rights strengthened.
After Labour’s defeat in the 1992 elections, the Society of Labour Lawyers finally decided in favour of a Human Rights Act. They took Roy Hattersley to dinner at Rules restaurant (the worst dining experience he had in his life, he later said) and persuaded him that the party should make this a policy promise. It did, and in 1998, the Human Rights Act made the European Convention part of British law. There seems to have been no debate over whether there should have been a home-grown Charter: the Convention was just sitting there, and was pulled “off the peg”, and without any fuss. Its great attraction to the government was that it fitted with the spin — “rights brought home” — with which the Human Rights Act was sold to the public. This slogan even had a vaguely anti-European flavour — instead of traipsing all the way to Alsace, and waiting years for European judges, we could now have our rights decided immediately by British judges. The danger that the public might turn hostile, or indifferent, to a “European” Convention was not recognised: the Human Rights Act had all-party support.
For Conservatives, of course, the Convention had been their own work, and they were now in opposition and all too mindful of Lord Hailsham’s warning (when in opposition) against “elective dictatorship”. They were still reeling from the derision heaped upon John Major’s proclaimed alternative to a Bill of Rights, the non-statutory “Citizen’s Charter” which had not been worth the paper on which it had been printed. (Its only practical use had been to encourage public servants to wear name badges and to answer telephones more promptly.) But the most important development which led to uncritical acceptance of the Human Rights Act in 1998 was the Tiananmen Square massacre of 2,000 student protesters — by the very government to which we were about to hand over Hong Kong. MPs of all parties clamoured for the immediate introduction of a Bill of Rights in Hong Kong, and the Chinese pointed out that this would impose on them obligations more onerous than the British government faced under its own right-less domestic law. The UK insisted on the “Basic Law” for Hong Kong, and there was no objection to a quick imposition of a similar basic law which “brought home” the European Convention.
Labour’s Lord Chancellor, Derry Irvine, hit upon a clever idea to quieten any objections about judges thwarting the supremacy of Parliament. It was simply this: Parliament should be assumed to legislate in conformity with human rights so its laws should be interpreted “as far as possible” to have that effect. If a law could not be so interpreted, then the judges would not be allowed to strike it down (as American judges could do) but would merely issue a “declaration of incompatibility” which would be drawn to Parliament’s attention. Parliament could amend that non-conforming law, or not, as it wished, thus remaining supreme. This seemed to work well, and in time judges adapted to the idea that human rights principles were part of UK law and were helped in many cases to do a justice that they could not otherwise have dispensed.
Hostility to the European Convention today is political, and derives in part from the very fact that it is called “European”. The court decisions that have fuelled hostility to it are the long-running Abu Qatada case, about evidence obtained by torture, and the decision that the UK should allow some prisoners to vote. And, of course, Mrs May’s cat.
Abu Qatada — invariably, but wrongly, described as “bin- Laden’s right-hand man in Europe”, provided headlines hostile to human rights for ten years. The government wanted to deport him for trial in Jordan, where unreliable evidence obtained by torture would be used against him. British judges thought this was fine, because he would not himself be tortured, but Strasbourg drew the line at making any use of torture in the legal process. He was able to hold out, courtesy of Strasbourg decisions, until Theresa May actually went to Jordan and persuaded them to alter their evidence rules, whereupon Abu Qatada (a man of the most noxious beliefs) voluntarily returned and was acquitted of terrorist crimes. In the end, it might be said, the European Convention had produced a win-win situation: acquittal of an innocent man and the alteration of unfair trial rules in a foreign country.
The other notable case where Strasbourg still disagrees with Tory MPs is over whether the right to democracy entails any rights of prisoners to vote in elections. The case is usually mis-reported: Strasbourg does not say that all prisoners must be allowed to vote, only that Parliament should come up with a law which determines which prisoners should be disenfranchised. When the same question came before the Australian High Court, which has no Bill of Rights, it reached the same result as Strasbourg, by way of implication from the country’s democratic constitution. There, and in consequence of the court decision, the conservative Howard government brought in a law that took away the vote from prisoners serving more than three years’ imprisonment. All the UK government has to do, to comply with the Convention, is to bring in a similar law — it could get away with limiting the bar to those serving more than one year.
“Mrs May’s cat” stands for all the lies, half-truths and misrepresentations that politicians and the media have made about the effects of the European Convention. It was at the Conservative Party Conference in 2011 that — to audience gasps — she announced that the Human Rights Act had allowed an illegal immigrant to avoid deportation because his “right to family life” required that he should not be separated from his pet cat. This was nonsense (the man had only referred to a shared cat in the context of proving that he had a long-term relationship with his partner). But politicians and journalists do not read closely reasoned court decisions — many of those blamed on the Act (especially deportation decisions) depend on European Union rules, and not the European Convention on Human Rights.
However, it must be conceded that the adoption of the Convention has damaged some important and traditional British liberties. This damage has generally been done by British judges, not the Strasbourg court itself. Take the great principle of open justice, expressed in John Lilburne’s demand that his court uphold “the first fundamental right of an Englishman” that “all courts of justice ought always to be free and open . . . no man whatsoever ought to be tried in holes or corners, or in any places where the gates are shut and barred”. Jeremy Bentham’s aphorism that justice must be seen to be done (“Publicity is the very soul of justice. It keeps the judge, whilst trying, under trial”) influenced the Earl of Halsbury’s 1911 statement of constitutional principle: “Every court in the land is open to every subject of the King.”
But when it came to drafting the Convention, this great principle was watered down to accommodate European systems where justice often was done in secret (The Nazi “morals courts” are a notorious example, but even today Sweden holds closed courts in sexual assault cases — the best reason for Julian Assange to stay in the Ecuadorian Embassy). The weasel words of the Convention, which states that “press and public may be excluded from all or part of the trial in the interests of morals or the protection of private life if the parties so require” has given British judges a dangerous new power, which they have started to use, to ban reporting and close the doors of the Old Bailey. A British Bill of Rights should strip it away.
Nonetheless, freedom of speech, unprotected in common law, has been much enhanced by Strasbourg itself, beginning with its decision in the Thalidomide case, which forced the UK government to liberalise the law of contempt of court. Its decision on Spycatcher, declaring it a breach of Article 10 for the Thatcher government to prohibit a book available in the rest of the world, was generally welcomed. Then there was the case — Goodwin v UK, in 1996 — where the British judiciary to a man had denied that journalists had any right in law to protect their sources (or that their sources had any right to protection). The European judges decided otherwise, in the interests of investigative journalism. After Rupert Murdoch, in what must rank as the worst-ever breach of journalistic ethics, turned over all his Sun journalists’ confidential sources to the police, it became a matter of some amusement that these journalists — the most rabid propagandists against the Convention — now demanded its protection.
That leaves the word “European” as the most powerful objection to the present Convention — a free kick for those who want it abolished. Liberty, the organisation most publicly opposed to a British Bill, was forced to admit the truth to the 2012 Commission, namely that there is a lack of public understanding and “ownership” of the Human Rights Act. The Commission reported that “many people feel alienated from a system that they regard as ‘European’ rather than ‘British’,” and added that this lack of “ownership” by the public was “the most powerful argument for a new constitutional instrument”. Of course, the answer Liberty comes up with is to provide more money for people to be educated about the European Convention. A better alternative, perhaps, would be to educate them about the British rights they already own.
The perception that human rights is a foreign concept will not be altered by education about the European Convention, which is couched in sanitised Euro-prose without any reference to the UK’s history and experience. Its preamble is actually dishonest, speaking of “countries which have a common heritage of political traditions, ideas, freedoms and the rule of law”. Can we really ask intelligent schoolchildren to think of our “common political traditions” with Nazi Germany, Fascist Italy and Stalin’s Soviet Union, or before that the “ideas” of Machiavelli, or earlier still the Spanish Inquisition and the continental inquisitorial process that developed from it?
But for all its defects and in spite of any enactment of a British Bill, the European Convention must remain, as a rare long stop appeal from Supreme Court decisions. Withdrawal from the Council of Europe is hardly an option: it would not only diminish the UK’s political and diplomatic clout in an organisation of 47 countries which usually abide by court rulings (even Russia, reluctantly, pays the damages it orders) but could lead to an exodus: the Council of Europe and its Venice Commission have been vital to stability and the rule of at least some law in Eastern Europe. And abolition of the Human Rights Act will be impossible unless the significant number of Tory MPs currently opposed to its repeal are satisfied that any British Bill that replaces it provides for all the rights that it already guarantees. Moreover, the Human Rights Act, which incorporates the Convention in UK law, underpins the Good Friday Agreement and the devolution settlements, so there will be further stakeholders to satisfy that the British replacement is fit for purpose. They cannot begin to be satisfied until the government vouchsafes them — and the rest of the nation — a sight of its proposed “British Bill”.
The only recent model was that drawn up seven years ago by the Joint Parliamentary Committee on Human Rights. It had a simple if uninspiring preamble: “This Bill of Rights and Freedoms is adopted to give lasting effect to the values which the people of the UK consider to be fundamental” i.e. the rule of law, liberty, democracy, fairness and civic duty. There followed several pages of incomprehensible legal procedure and then a list of bullet points incorporating by reference the European Convention rights.
Then — new to British law — it articulates some social and economic rights (to health, care, education, housing, and a sustainable environment) which are “only justiciable to the extent they are relevant to the interpretation of legislation or the assessment of the reasonableness of the measures taken to achieve their progressive realisation”. This is an interesting way of extending some protection to post-1953 educational and social rights. However it does underline the fact that drafting a “British” Bill cannot be done, as its advocates appear to think, on a wet Sunday afternoon. Its draft will have to win substantial cross-party support, perhaps after debate at a constitutional convention, and that necessary cause of “ownership” would be achieved by endorsement at a referendum.
And so to proof of the pudding: an actual example of a “British” Bill of Rights. That is not the name I would choose to call it: too insular, and too redolent of the current sterile debate about “British” and “European” rights. “The Statute of Liberty” would be a better title, remembering how The Petition of Right described Magna Carta as “the great charter of the Liberties of England”.
Then comes the all-important preamble. It must be short but inspiring, not over-triumphalist, and teachable to teenagers. It must conjure up in its language the achievements that its subsequent rules reflect. This is not a task for lawyers, but for historians and poets and people of some imagination and literary ability, whom Mr Gove should recruit immediately. Then come the rights themselves, which should include all those in the European Convention, sometimes expressed in the language that has been used in our own historic documents (this will require judges to learn a little history in order to interpret them, which would be no bad thing).
We should take the opportunity to restate the rights that the European Convention has diminished (notably the “open justice” principle), to eliminate its weasel words (and a nasty little racist clause — 16 — that could allow governments to deny free speech to “aliens”) and to add rights that we now accept as a matter of international law — such as the rights of the disabled and the general principle of non-discrimination.
And no British version of Liberty would be complete without some contribution from Shakespeare — the European Convention entirely overlooks the most basic humanitarian principle, that mercy must season justice.