The New Labour government's incorporation of the European Convention on Human Rights into British law is nothing for civil libertarians to celebrate, says James Heartfield
Getting It Wrong On Human Rights
A 14-year-old boy has been placed on the register of sex offenders following a conviction. He will be obliged to notify police of his whereabouts and potential employers of his conviction into his late twenties. Young people on an estate in Glasgow are being rounded up by police in the evenings - a curfew in all but name. Those accused in rape trials are to have their right to defend themselves curtailed. Under new laws on stalking and harassment you can be convicted of an offence even when you had no intention to cause harm. So far the law seems to have been used mainly to imprison those who were evicted from mental hospitals under the 'care in the community' reforms.
The public debate about law and order has settled into a vicious circle where inflated fears of crime and violence justify ever greater regulation, and more regulations mean more convictions, supporting the belief that there is more crime. It is hard to remember that there was a time when the bar-room bigotry of authoritarian Tory home secretaries like Michael Howard and David Waddington provoked criticism instead of praise. Under New Labour home secretary Jack Straw, all that has changed. Now the only criticisms made of the home secretary are that he has not moved quickly enough or far enough in introducing new restrictions.
In such a climate, the question of civil liberties does not seem very high on the agenda. Indeed, New Labour has previously scorned the issue of civil liberties as secondary to the question of community safety. But now Jack Straw seems to have thought again, by incorporating the European convention of Human Rights into British law. Straw said it was a 'historic day', and civil liberties campaigners agreed. John Wadham of Liberty said 'We've been campaigning for it for years. We're absolutely delighted'.
Incorporation of the Convention means that British judges will be able to rule on cases brought before them under its terms. People who feel that their rights under the Convention have been breached will no longer have to spend thousands of pounds bringing cases to the European Court in Strasbourg, nor wait the many years that judgements there usually take. Government ministers anticipate the creation of a 'human rights culture', and the possibility of a permanent Commission on Human Rights.
This new thinking might seem to be a welcome reversal of what appears to be a low-life contempt for civil liberties in the government's law and order rhetoric. Yet since the announcement there has been no let up in the general drive towards greater police and court powers.
In fact New Labour's new-found concern for human rights is a largely rhetorical matter. It does not contradict the government's overriding instinct towards authoritarian solutions to social problems. Rather, the 'human rights culture' is little more than the official gloss on a profoundly illiberal culture of restraint and regulation. The human rights culture will be reserved for Sunday sermons, while the weekday business of regulation continues unabashed. Incorporating the European Convention is the government's way of distancing itself from the consequences of its own prejudice towards repression.
In principle a bill of rights could be a good idea. The American Bill of Rights is rightly celebrated as a humane and democratic document. It encapsulates the spirit of freedom that informed the American War of Independence. Revolutionary France's Declaration of the Rights of Man similarly distils the libertarian spirit of its day. The fact that subsequent governments of France and America have often failed to live up to those ideals is not an argument against them.
In the dark days of Cold War America, the Bill of Rights was trampled underfoot by congress' House Un-American Activities Committee in the pursuit of a largely imaginary threat of communist subversion. In the 1950s civil liberties campaigners tested American commitment to the Bill of Rights by presenting its clauses in the form of a petition to the electorate. They found that many Americans, ignorant of their own constitution, refused to sign what they thought was a communistically inspired document (H Kallen, Cultural Pluralism and the American Idea, 1956). That reaction might reflect badly on the culture of repression in Cold War America, but it reflects well on a document that continues to be a focus for civil liberties campaigners to this day. Pornographer Larry Flynt, whose magazine Hustler was banned in several US states, fought for his own freedom to publish before the Supreme Court on the basis of the Bill of Rights. The irony that it fell to a pornography mogul to defend freedom of speech does not take away from the fact that the right was enshrined in the US constitution, for anybody to lay hold of.
Britain's constitutional tradition differs from that of France and America in that the law does not stipulate rights in positive terms, but negatively, on the principle that what is not forbidden is allowed. According to a Telegraph editorial against the European Convention on Human Rights, the English law tradition is superior to the Continental model of a bill of rights (26 October). That might seem plausible were it not for the fact that the statute book is now so crammed with new laws and regulations that what is allowed is heavily circumscribed by what is forbidden. There is nothing inherently superior to the English law tradition, but nothing inherently deficient about it either. What is really at issue is less the kind of legal framework adopted, than the underlying spirit it expresses.
Whatever the virtues of the principle of a bill of rights, the European Convention on Human Rights is not a document that embodies a spirit of liberty. The American Bill of Rights and the French Declaration of the Rights of Man were the founding documents of revolutionary governments determined to sweep aside the outmoded privileges of colonial rulers and aristocratic elites. Their pages resonate with the independent spirit of the men and women that made those times. The ECHR is a document of a very different order, reflecting very different times, and less generous aspirations.
In 1948 when the ECHR was formulated, Europe was staggering to recover from the most ignominious chapter of its history. Two of the most civilised European nations, Germany and Italy had recently descended into the depravity of fascism, tearing up such liberties as did exist all over Europe. Nor were the Allies - Britain, Soviet Russia and the United States - who defeated them exempt from the trend towards authoritarianism. The Allied powers laid claim to the rhetoric of liberty, but used the means of repression and martial law. In the defence of Britain's colonial possessions there was little pretence of extending liberty. In Europe, the Allies hung back from an engagement with the Axis powers until after popular resistance by the partisans in eastern and central Europe had been crushed by the Nazis.
The European Convention on Human Rights embodies all the contradictory sentiments of a ruling order that paid lip-service to democracy while inheriting jurisdiction over a Europe that was steeped in repression. The purpose of the Convention is to provide a framework for ruling post-war Europe, while at the same time lending some shred of legitimacy to those European elites that had been heavily compromised by their support for fascism. Those conflicting needs shine through the document to this day.
The ECHR borrows its rhetorical style from those earlier documents, the Declaration of the Rights of Man and the American Bill of Rights. Words like 'rights' and 'freedom' stand out, while slavery, forced labour and torture are condemned. But the devil is in the detail, or in this case the second, qualifying clauses to the main articles. Like a huckster's contract, if you want to understand the ECHR, you have to get past the generous opening terms and read the clauses in fine print.
Article two enshrines the right to life, a much debated clause, that has been deployed in arguments against abortion, but was written to distance European governments from the record of the Holocaust. The exceptions to the clause indicate the concerns of Europe's post-war ruling classes. They include taking lives in the course of detentions, prison escapes and 'for the purpose of quelling a riot or insurrection'. Not only would this suggest a defence for Britain's many black deaths in police custody, but also for the killings of 'rioters' in Derry on Bloody Sunday, 1972, of hundreds of Algerians in Paris in clashes with the police in the fifties, and even the East German suppression of the workers uprising of 1949. Under the ECHR, some lives are more protected than others.
Article eight enshrines the 'right to respect for...private and family life' - written to distance European police forces from the dreadful memory of the SS night-time raids on 'subversives'. But the two line rule carries eight lines of exceptions, including national security, public safety, economic well-being of the country, the prevention of disorder or crime and the protection of health and morals. That last exception, the protection of morals was the basis on which the consenting sadomasochists of the Spanner case lost their case against arrest and conviction by the British state.
Article 10 enshrines freedom of expression, but its qualifying sub-clauses are, if anything, even more extensive than those to article eight, adding, on top of that previous list, exceptions in the case of a threat to territorial integrity, the protection of others' reputations, keeping confidences, and maintaining the authority of the judiciary. In other words the broadcasting ban on Sinn Fein imposed in 1988 could have been defended on the grounds of defending the territorial integrity of the United Kingdom, the suppression of Spycatcher could have been defended on the basis that Peter Wright had betrayed a confidence with his employers, judges could suppress criticism of their judgements, and Britain's peculiarly strict libel laws would remain intact.
Need one add that article 15 allows government to suspend almost every other article in time of war or public emergency, while article 16 sets out extensive escape clauses in the case of 'imposing restrictions on the political activity of aliens' (no comfort for political refugees here)?
In substance the ECHR is a document that does not extend rights but restricts them. In fact its clauses are in most cases more restrictive, not less, than the current state of British law. Its incorporation does not imply an extension of rights in Britain. In fact, in providing a lower benchmark than the British courts have done until now, it is likely over time to lead to an actual restriction of rights in Britain. As the courts rule on cases brought under the ECHR, the Convention's more restricted provisions will become the norm.
Many of those who have campaigned for the incorporation of the ECHR recognise that it is a far from ideal document. Spokesmen for Charter 88 and Liberty have often conceded that the document is a product of its authoritarian times. However, they argue, it is a start in the process of getting a written bill of rights entrenched in British law, and should be seen as something that can be a focus for the further extension of rights in the form of a constitutional guarantee.
Unfortunately, the argument that the incorporation of the ECHR reflects a growing 'human rights culture' is wrong. The most obvious sign of that is the government's own actions. It is not just that the legal intrusions into private and family life continued unabated. The government also made a point of exempting the Draconian provisions of the Prevention of Terrorism Act, with its seven days of detention and interrogation, without access to a lawyer or any other kind of outside contact. Thousands of Irish men and women have been arbitrarily detained under the act, the overwhelming majority of whom are released without charge (see P Hillyard, Suspect Community, 1993).
But quite apart from the government's actions, the proposition that the pressure for incorporation stems from a growing human rights culture in wider society is wrong too. In recent times there has been some genteel agitation around civil liberties, but only in the context of a much broader loss of public interest in questions of political and civil freedom. The public mood is much more influenced in the other direction by a mood of retribution against criminals especially paedophiles. There might be some discussion in more radical law chambers about justice, but on the streets the talk is of punishment.
In fact the move towards incorporation is an adaptation on the part of civil liberties campaigners to that public mood. Fearing that they will lose the argument for freedom if it is put before the public, they have sought to take that argument out of the public sphere altogether. The case for a bill of rights made today is not that it will put liberty in the hands of the people, but, on the contrary, that it will save liberty from the mob. The left's growing enchantment with such unlikely champions of liberty as the British judiciary or the European Courts is in direct proportion to its disillusionment with the British public. Consequently its strategy has been to remove the defence of liberty from the one to the other.
It must be said that this is a thoroughly disastrous strategy in all respects. It is a disaster for freedom, because the courts have no interest in or predisposition to the defence of freedom. The entire character of an appeal to the good grace of the courts is subservient, entrenching not liberty but the patrician authority of m'learned judges. Throwing yourself at the mercy of the courts is an act of last-ditch desperation, that makes our freedom a plaything of the powerful. Instead of increasing our liberty, it only serves to increase their authority over us.
Equally the strategy of turning to the courts is a disaster because it reinforces the popular indifference to questions of rights and justice. Instead of tackling the current repressive climate, these campaigners are trying to avoid meeting it. They reinforce the prejudice that 'the mob' is inherently hostile to questions of rights. Among the public, such sneaky tactics only reinforce contempt for 'liberal do-gooding'. Every time they see the arbitrary authority of a judge pass over their heads to protect a defendant's rights, the view that rights are a concern of elite power is reinforced. In refusing to take the case for freedom to the public, campaigners abandon the public to the most reactionary influences.
Not surprisingly this resolution is the one favoured by the government. It has succeeded in washing its hands of any responsibility for defending freedom. That leaves it free to appeal to the most backward-looking popular sentiments in framing its new laws. At the same time the government retains its links with those who baulk at such sentiments, at a distance, by redirecting their efforts towards legalistic lobbying.
The incorporation of the ECHR is a recipe for sidelining the case for rights, while the New Labour government gets on with the job of undermining them in practice.
Reproduced from LM issue 106, December 1997/January 1998