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. 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 Milton and 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 Napoleon. The first judge-only trials for serious criminal offences like armed robbery are beginning this month 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 Damien Green’s offices, and by two high court judges who granted injunctions to Trafigura which would have prevented reports of proceedings in parliament. They 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, its 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 Aspergers, who faces up to sixty 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?
Because parliament, when it passed the 2003 Extradition Act, relied instead on the weak and watered down language of the European Convention, giving to the Home Secretary power to stop extradition only when it would lead to punishment that is “inhuman and degrading”. The Americans are not inhuman and their prisons are no more degrading than ours, so McKinnon has to go into one (his sentence is estimated at 8-10 years), and will probably commit suicide. He will be a victim of the European Convention, or at least of parliament’s ignorance in preferring its loose language to that of its own, more stalwart predecessor.
There is mounting evidence that the weasel words of the European Convention are damaging other basic British rights. Take the “open justice” principle, the rule that justice must be seen in order to be done. As Bentham put it, “It keeps the judge, while trying, under trial.” First articulated by “freeborn John” Lilburne when put on trial by Cromwell in 1649, it was given definitive shape by Lord Halsbury in the great case of Scott v Scott in 1913: “Every court in the land is open to every subject of the king”. And so it was, until the European Convention imposed by the 1998 Human Rights Act began to take hold, with its myriad of exceptions. It says “the press and public may be excluded from all or part of a trial in the interests of morals, public order… or where the protection of the private life of the parties so requires…”
This is one of the “lowest common denominator” compromises made in 1950: Scandinavian courts were always shielding their defendants from embarrassment, while German courts would persecute homosexuals viciously, but always in secret (hence Baron Von Cramm, the German tennis ace, shortly after losing the Wimbledon final in 1938 disappeared behind the closed doors of a Nazi “morals” court). Thanks to this loose language, British judges are now being prevailed upon quite regularly to close their courts and to gag the press from reporting names and details of litigants. The law reports are full of cases titled A v B, and the docket for the first term of our new Supreme Court read like alphabet soup.
Then, of course, there is the problem of freedom of speech, guaranteed by Article 10 of the Convention in apparently powerful terms that establish a presumption in its favour, which can only be overridden by subsidiary rights, such as the right to reputation, when this is necessary in a democratic society. This was an improvement on British common law, and the early Strasbourg cases liberated our law of contempt (thanks to the Sunday Times thalidomide case) and established the right of journalists to protect their sources. But at Strasbourg more recently, some anti-press judges (from places like Malta) have insisted that “reputation” is a right that should be given equal weight because it is an aspect of privacy, and so it can be “balanced” against free speech which should have no presumption in its favour at all. This is an intellectually devious reading of the Convention, because back in 1950 an attempt was specifically made to insert “reputation” as a privacy right, and it was roundly defeated. To bring it back through the subterfuge of “judicial interpretation” has damaged respect for the court.
And then there is privacy. There is nothing wrong with protecting intimate personal details, or aspects of home and family life, from media intrusion, and this was a serious gap in the common law. But it has not been satisfactorily filled by the sprawling and incoherent Strasbourg jurisprudence, which defines privacy as “physical and psychological integrity…. ensuring the development of the personality of each individual in his relations with other human beings… there is a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life”.
This psycho babble was the basis for finding that the press could not photograph princess Caroline of Monaco, even in a public place, and in due course for awarding £60,000 to Max Mosley for intruding on his “zone of interaction with others”. The News of the World had libelled him by accusing him of indulging in a Nazi sex orgy (he had only been engaged in an English sex orgy) but the European Convention allowed him to sue for breach of privacy. This meant that the paper lost its right to trial by jury, traditionally a safeguard for freedom of speech (especially in libel case, by its power to award “the lowest coin in the realm”). The result is that non-fiction books about the recent past are, prior to publication, being degutted of any detail to which a living person might take exception on the basis that it interferes with their “psychological integrity” or “zone of interaction with others”.
The Convention is in some respects out of date. It has a very nasty exception to freedom of speech and assembly, which permits governments to gag and to discriminate against “aliens”, anyone who has not taken out British citizenship. And it has no mention of the rights of children or of the disabled, subjects of the UN Conventions in recent years. It is silent about environmental rights, which were unheard of in 1950 but are of urgent importance today, requiring safeguards against pollution and ecological degradation. It makes no mention of economic and social rights that have been included to valuable effect in more recent constitutions, such as that of South Africa.
In other advanced countries a Bill of Rights, especially if embodied in a constitution, can become a powerful symbol of national identity. In the American constitution, the Bill of Rights is the bedrock of civil culture whilst in Canada (a country with no particular history to speak of), Trudeau’s objective of strengthening national identity with a Charter of Rights has largely been achieved. In Britain, although the Convention has been valuable in filling some gaps in the common law and encouraging more principled adjudication, it had done little to conduce to the “culture of liberty” that its proponents (myself included) predicted back in 1998, largely because of the perception that it is “European”. Its Euro-prosaic language is uninspiring and it lacks any preamble that roots it in British history or experience. And, as the Foreign Office noted at the time, some of its Articles were “too loosely drafted to provide effective guarantees of the rights they contain”.
For these reasons, Mr Cameron’s call for a British Bill of Rights deserves enthusiastic support, although some Euro-phobic members of his party have applauded it on the misunderstanding that it will mean abandonment of the European Convention. It will not: ultimate compliance with that Convention will remain a treaty obligation, as it does for 46 other European countries. But with a tightly drafted British Bill, the cases upheld at Strasbourg should be few and far between. In any event that court is deluged with complaints (80,000 at latest count) of much more severe breaches from Russia and its former satellites and from Turkey, and Euro-wide standards have had to dumb down to accommodate them. The court is likely to overrule a few British court decisions, e.g. by giving prisoners the right to smoke (Why not? It’s in the Geneva Convention) and by requiring repeal of laws which ban political and “advocacy” advertisements on television (ITV needs the money).
But Labour shows little enthusiasm for any change. Jack Straw recently brought down an incoherent Green Paper on something he called a “Bill of Rights and Responsibilities,” in which nobody showed the slightest interest. The organisation “Liberty”, paradoxically, is opposed, apparently on the principle of “better keep a hold of nurse, for fear of finding something worse”. No doubt it fears that a Tory-drafted statute would be tough on refugees and immigrants. But their liberties, too, are a proud part of our history and Strasbourg would remain to protect them if the new Parliament puts them in jeopardy.
But Bills of Rights do not come ready-made. Mr Cameron should turn his mind to forming a non-partisan drafting committee, and then perhaps to summoning a National Convention to approve the draft, followed by a referendum in which the people could decide whether to entrench the rights to which we have always paid lip-service but which no previous government has dared to protect from the vagaries of panicked or prejudiced parliamentary majorities.