From this week, Modern British Studies will be posting more regularly on the blog. This week our Director, Chris Moores, reflects on the Conservative Party’s new proposals for reforming human rights law within the UK.
Last week our city of Birmingham hosted the Conservative Party’s Conference. At this, both the Secretary of State for Justice and the Prime Minister argued that the Human Rights Act of 1998 needed to be ‘scrapped’ and suggested that the British do not require instruction on human rights from the European Court of Human Rights in Strasbourg. Since then, the Conservative Party has published its proposals for changing human rights law in the UK.
Discussions of our rights should be of interest to anyone interested in Modern British Studies. Citizens’ rights and responsibilities, the balance between state and citizen and the relationship between the UK and transnational legal institutions, are all touched upon in the deliberations over the European Convention on Human Rights (ECHR) and the Human Rights Act.
The proposals also contain a number of arguments of interest to historians. They explain that the ECHR was drafted to ensure that the ‘horrors of the 1940s’ would not be repeated. Accordingly, they suggest that the ECHR is ‘an entirely sensible statement about the principles which should underpin any modern democratic nation’, but these have been extended ‘beyond what the framers of the Convention had in mind when they signed up to it’.
Insofar as we can attempt to ‘learn lessons’ from the 1940s in any straightforward manner, as the proposals imply, these are clearly being chosen somewhat selectively. It does not take a hugely perceptive historian to point out that making human rights law applicable to a nation’s armed forces, a feature which the current proposals intend to remove, might be one of the clearer ‘lessons’ of the Second World War.
We should not, however, be too surprised at the political divisions surrounding human rights. For all of the universality of rights talk, its history has been deeply conditioned by politics. In the past, as with now, this has often been about working out which rights should be included or excluded in our human rights frameworks.
The ECHR was drafted by conservative lawyers, notably David Maxwell-Fyfe, working under the influence of various numerous non-governmental organizations promoting forms of ‘free enterprise’. These influences ensured that the ECHR offered a very ‘liberal’ conceptualization of rights and underplayed the various ‘social democratic rights’ that were central to the making of the post-war European welfare states.
Excluded were many of the more expansive rights iterated within the Universal Declaration of Human Rights (1948), the less well-known Sankey Declaration of Rights (1940) and H.G. Well’s The Rights of Man (1939) which excited certain sections of the British left during the late 1930s and 1940s.
At various moments, the ECHR has been useful to Conservative politicians and activists. It was through the European Courts that the pressure group the Freedom Association managed one of its greatest achievements. By providing legal advice and a job for the British Rail worker, Roger Webster, who had been sacked for refusing to join a trade union, the Freedom Association used the European Courts to rule against aspects of the ‘closed shop’ practices of the trade union movement.
John Gouriet, the Freedom Association’s chief protagonist and a somewhat untypical human rights activist, saw this as part of his organization’s mission to ‘combat the advance of communo-socialism in the trade unions’. As leader of the opposition, Mrs Thatcher also cited the ECHR to help explain her opposition to the ‘closed shop’ system.
The ECHR also had its uses for Conservative Governments. In 1980, Thatcher’s Government discussed whether the UK citizens should continue to have the right of appeal, eventually deciding in favour or continuing the right to appeal.
That decision owed more to pragmatism than idealism. First, it was feared that failure to renew would be an implicit admission that the Government was breaching the ECHR in Northern Ireland, which risked inflaming Republican or civil libertarian opposition. Second, the country would ‘lose a tactical advantage in relations with Communist bloc and other countries’. Third, Britain risked isolation from other European countries.
Obviously the situation in Northern Ireland has changed and global communism is no longer the threat to Western Governments that it once was, however, the issues of transparency, international reputation and the value of setting precedents for diplomatic reasons remain relevant today.
The eagerness to turn the clock back on the concept of human rights, stripping it back down to the standards outlined by Maxwell-Fyfe, runs counter to the history of the subject. This has often been as much a history of change as it has been of continuity.
Important rulings from the European Courts have touched on numerous issues that might not have been imagined by the ECHR’s framers – including the rights of UK citizens caught between new immigration laws and the nationalist policies of newly decolonized nations (Alam & Khan v UK), the rights of those subject to the practice of corporal punishment in schools (Tyrer v UK) or the rights of those wishing to decriminalize homosexuality (Dudgeon v UK).
Human rights issues associated with sexual identities, privacy in the age of the internet, or genetic integrity following scientific advances mobilize and engaged today’s human rights activists, but could not have been on the agenda in the 1940s. It would have required a deeply impressive feat of futurology on the part of Maxwell-Fyfe to anticipate such developments.
Designing a new ‘British Bill of Rights’ with the hope that human rights issues become less politically controversial is somewhat counterintuitive. Human rights became legally meaningful within the UK once citizens were given the right to individual petition to the European Court of Human Rights in 1967. Since then they have often been controversial.
Human rights law has tended to be most relevant to those operating on the boundaries of acceptability. Attempting to build human rights mechanisms that do not generate controversy, which fail to rule against ‘public opinion’, or which are unable to counter government policy, seems a rather pointless exercise.
 John Gouriet, ‘Foreword’ in Roger Webster, When Britain Waived the Rules… And sampled Anarchy (Sussex, 2000)
 Memorandum by the Secretary of State for the Home Department and the Secretary of State for Foreign and Commonwealth Affairs, The National Archives, The National Archives, Cabinet Papers, CAB 129/210.