Theresa May: to remain faithful to ‘the basic principles of human rights found in the original ECHR’?

durantiThis is a slightly modified version of a book review of Marco Duranti, The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention, Oxford University Press, 20 Dec 2016 (it was originally published on the Lawfare website). In a work of great depth and incisive analysis Duranti looks back to the mind-set of those Conservative politicians in the UK who backed the Convention in 1950. His account should give pause for thought for today’s Conservative politicians advocating withdrawal from the ECHR and advancing a self-righteous, ‘Britain-knows-best’ view in relation to what is portrayed as a meddling Strasbourg Court.

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An election is due to be held in the UK on 8 June 2017. We await the Conservative Party’s manifesto, and there is a real sense of anticipation regarding what it may say about the UK’s membership of the ECHR.

That is because last December the British press reported that the UK Conservative Party may include a commitment for the UK to withdraw from the European Convention on Human Rights (‘ECHR’) in its 2020 election manifesto. A decade or so ago such a proposal would have been inconceivable. Today, however, the anti-Strasbourg mood, which is mainly (but not exclusively) concentrated amongst a sector of UK Conservatives, is based on a variety of factors. One is perception that the European Court of Human Rights (‘Strasbourg’, ‘the Court’) has aggrandized its jurisdiction to become an overly intrusive institution, and that this now entitles the UK to withdraw from the ECHR.

This was the narrative of a 2014 Conservative party document (entitled, ‘Protecting Human Rights in the UK’) which maintained that the UK had had a major role in the drafting of a good Convention text, and that it was Strasbourg’s misinterpretation of the same which was at the root of the problem with European human rights law today. It concluded by stating that the UK stood by ‘the commitments made when we signed the Convention, and it is only the subsequent approach of the Court … that [has] eroded public confidence in our human rights framework’.

Following this, but before she became Prime Minister, Theresa May touted the possibility that the UK might withdraw from the Convention, if that was necessary to ‘fix’ UK human rights law. To ‘what end are we signatories to the Convention?’, she asked. Similar statements were made by her in April 2016. In February 2017 she referred to her commitment to reform UK human rights law in a fashion that would ‘remain faithful to the basic principles of human rights found in the original ECHR’.

The Conservative Human Rights Revolution

Against this backdrop the publication of Dr Marco Duranti’s book is very timely, is, and should be, significant. As he puts it,

‘[although some of the rulings of the Strasbourg court have been unwelcome to conservatives, the underlying principles of which it operates today are more in line with the original intent of its conservative progenitors than commonly assumed’ (pp 340-341).

The Conservative Human Rights Revolution should, therefore, give pause for thought for politicians advancing a self-righteous, Britain-knows-best view in relation to what is portrayed as a meddling Strasbourg Court that has lost sight of the Convention’s origins.

That is because Duranti’s account shines new light on the motivation of some of the major figures who led calls for a European Human Rights guarantee, who had a leading hand in producing initial drafts of it, and who then exerted sufficient pressure on the (reluctant) governments of the day, including the UK, to ensure that an ECHR came into being. Those figures included leading Conservative politicians of the era, such as Winston Churchill, but especially David Maxwell-Fyfe. As Duranti puts it, his study seeks:

‘to reframe our understanding of the origins of European human rights law by examining it through the lens of political conflicts underway within Britain and France during the period immediately following the Second World War. Free-market conservatives in Britain and social conservatives in France viewed a European human rights charter as a means of enshrining their contested views as the foundation stones of a united Europe’. (page 332)

In this reader’s eyes one of the most important features of Duranti’s account is how leading conservatives of the era (in the UK, but also in France) foresaw Strasbourg’s overall role. From the conservatives’ perspective the real value of an external safeguard would be to the check against extreme left-wing policies (such as nationalisation) that the UK Labour party (or government) could institute with the backing of a compliant (executive-dominated) Parliament. Here we recall that the government at the time of the Convention’s drafting was the Labour, Atlee administration.

So, this aspect of the Conservative’s agenda over the late 1940s and into 1950 was part of an attempt to use a European regime to curb the extreme policies of a rival political party. From that perspective, the immediate inspiration was, clearly, political.

Yet, for today, the key points to grasp are as follows.

A European safeguard was viewed as having valuable potential, precisely as it was an external check.

In the UK that was so, especially, because of the nature of the UK’s constitutional arrangements, which permit the executive to potentially control Parliament (a regime described in the 1970s as an ’elective dictatorship’). Thus, as twenty-first century Conservatives cry foul at a Court with potential to frustrate Parliament’s will on matters such as prisoner voting, we observe that their political forefathers envisaged and promoted a regime to do precisely this, albeit their target (at the time) was mainly the more extreme policies of the left-wing.

Duranti’s account is therefore very significant for the way its brings out how those who conceived the Convention – as opposed to the governments responsible for signing it – saw it as an external check on the excesses of the State, and a safeguard against (what they saw as) the malfunctioning of the national democratic machine.

It underlines how simplistic it would be to claim that the Convention was only intended to protect against the types of gross and systematic violations of human rights associated with Hitler and Stalin. Those advocating withdrawal from the Convention on the basis that today’s Court has lost sight of the origins and ideals of those who drafted a good substantive human rights text need to test their points against Duranti’s analysis. Even before ‘Brexit’, much of the Conservative rhetoric has been in keeping with the notion that Britain has a long tradition in protecting human rights, and does not need Europe’s intervention in this field. That is not necessarily the way that Churchill and Maxwell-Fyfe saw it.

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Duranti’s book is highly recommended, and, in my view, deserves the accolades and great recognition which it will surely achieve. It should influence debates on how the ECHR is seen today.

To be clear, it does not (it my view) boost the case for those who would like the Strasbourg Court to become more progressive than it already is. Indeed future historians may yet recount that, thanks in large part to British-led efforts to reform the Court at Brighton in 2012, it has become a more ‘conservative’ institution. (As one Strasbourg Judge has put it, the Convention system is in an ‘age of subsidiarity’ – see here).

Above all, Duranti’s account exposes the weakness of the argument that the UK is justified in withdrawing from the Convention on the basis that its Court has somehow totally perverted what European human rights control was all about, given what was intended (at least by the most enthusiastic advocates of the Convention) in the late 1940s.

Those advocating withdrawal often take the line that the UK has a long and proud tradition of human rights protection, which would not be brought into disrepute by UK withdrawal from the ECHR. Duranti’s book underlines what a skewed and short-sighted view that is. As he puts it:

‘A weakening of the European human rights system would render countless individuals, families, civil society groups, local communities, minorities, and political oppositions across European more susceptible to direct discrimination and abuse by the state. The day such an eventuality transpired would be a sad one for those who believe in the principles that Churchill and his fellow conservatives fought so mightily to enthrone in international law’ [[341-342].

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