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Blustering over the European Convention on Human Rights


Blustering over the European Convention on Human Rights

On why we should oppose those who wish to take the UK out of this bourgeois system.

One would think that it’s the Battle of Bri­tain all over again. On 21 Novem­ber 2012 the Daily Mailcar­ried 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 ECHRwas inspired by Churchill, and draf­ted by Brit­ish law­yers under the guid­ance of David Maxwell-​Fyfe (later Con­ser­vat­ive Lord Chan­cel­lor Kilmuir). The UKwas 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 imposedupon 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 theEOKA 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.

From → My posts

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