Quick, we need some long-held, deeply felt convictions – and we need them fast. You know: stuff we can bung in a written UK constitution based on centuries of history, shared values and culture – that sort of thing. Why? Because that way we can keep the European Court of Human Rights off our backs.
The Conservative Party, you see, has noticed that the Strasbourg court – known for riding roughshod over UK government actions – is sometimes willing to let countries get away with things. But only if those countries have long-held, deeply felt convictions that emerge from their history, shared values and culture – and are written into their constitution.
Britain doesn’t have a written constitution, hence the new “UK Bill of Rights and Responsibilities” that the Conservatives are working on.
The rationale being used for the new Bill of Rights – that human rights are relative, not absolute – would not be out of place if uttered by a 1970s leftie lecturer at a bog-standard polytechnic. Here is arch-Tory Charlie Elphicke introducing his Bill of Rights (which will be the basis of the official Conservative Party version) in a parliamentary Private Member’s Bill last year:
“The Bill is intended to help rebalance the approach to human rights towards a more subjective application to particular cases with the aim of ensuring that justice and fairness are not trumped by the rigid objective view that has characterised the jurisprudence of the European Court of Human Rights.”
So Strasbourg judges have been too objective, apparently. Elphicke is wholly insistent on this subjectivity point, rejecting the principle that judges should come to decisions on a straightforward objective reading of the law. They should take account of each country’s history, shared values and culture before making decisions on their governments’ alleged breaches of human rights.
‘The British think one thing, the Spanish think another. There is no way of resolving it, because it is purely relative’ – Charlie Elphicke
This is where Elphicke qua poly lecturer comes in: human rights, as far as he is concerned, are “relative” – not universal, not international, not agreed by all, but, he might well have said in the parlance of the post-modernist academic, complex, contingent and contested.
This is strange for Conservatives, usually so opposed to relativist approaches to moral values. But apparently human rights are not absolute, Elphicke believes. “The British think one thing, the Spanish think another. There is no way of resolving it, because it is purely relative.” What human rights you should expect depends on context, where you are in the world and when.
This is shocking for a member of a governing party in one of the world’s great liberal democracies not least because it abandons any idea that Europe and its Convention might be a beacon to other countries around the world. It allows the Egyptians or the Chinese to say: your ways are not ours; it is purely relative; you think one thing, we think another and there is no way of resolving it.
But the Tories have also noticed that the Strasbourg court is willing on occasions to take a subjective, relativistic approach by operating the “margin of appreciation”: “the space for manoeuvre that the Strasbourg organs are willing to grant national authorities, in fulfilling their obligations under the European Convention on Human Rights”.
This recognises the “diverse cultural and legal traditions embraced by each Member State” and accepts that the move to uniform standards of human rights protection must be gradual. The issue is discussed in the ECHR case of Handyside v United Kingdom (see below). In this 1976 case, the court rejected an Article 10 freedom of expression claim over an obscenity court ruling and forfeiture order against the Little Red School Book, which contained sexual material for schoolchildren. The book had been published in Denmark but the court ruled that there was no single standard of European morality so the UK authorities had the right to act on a strictly British conception of moral values.
It may seem paradoxical that the Tories are using hated European law to craft their arguments for a British Bill of Rights, all the more so because the case that really excites them comes from the reviled European Union rather than from the ECHR – though the principle of the “margin of appreciation” is the same.
This is explained by Conservative barrister Jonathan Fisher, arguing for a Bill of Rights incorporating civil obligations. He notes:
“A recent illustration of the significance afforded to a provision in a written Constitution was afforded in the Omega Spielhallen case where the European Court of Justice declined to strike down legislation passed by the German Parliament which prohibited the commercial exploitation of a shooting game involving the simulated killing of human beings. The European Court was much influenced by the fact that the German Parliament had taken the view that the prohibited activity constituted a threat to public policy because ‘it infringed a fundamental value enshrined in the national Constitution, namely human dignity’.”
This was a case about free markets and freedom to provide services rather than free speech as such, brought on the principle that products or services acceptable in one EU country should be acceptable in all. The Luxembourg judges, however, accepted “human dignity” was a legitimate European Community aim and one can imagine it might be particularly important to Germany given its Nazi past and its attempts to fashion a new democratic consensus around rejection of Nazi values. So simulated slaughter might be deemed as not being conducive to “human dignity” and so in this case “human dignity” could legitimately justify restrictions on Community obligations.
‘It is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals.’ European Court of Justice
But Fisher’s argument is pretty specious. He is saying that Britain lacks a written constitution, but if it had one, containing deeply held British values based on Britain’s history and traditions, then human rights courts would pay due deference to those values along the lines of the European (EU and ECHR) “margin of appreciation”.
But the EU court deferred to Germany’s constitutional adherence to “dignity” because there was a real reason for it – it arose as a response to traumatic events in its recent history. It wasn’t just cobbled together to give the government a fighting chance in the European courts. What, after all, will Britain’s principles be? Apparently that we don’t like immigrants and hence want to crack down on them – so Theresa May’s political problems trump more welcoming traditions going back centuries to the Huguenots and forward to the Empire Windrush – or from Marx to Miliband Sr.
Apparently we have a deeply held feeling requiring a citizen/subject to “render help to other persons who are in need of assistance, where reasonable and to the best of his ability” (Article 23 of Elphicke’s Bill) – even though the English Common Law tradition has always been to reject such obligations (in contrast to the French under article 223–6 of the Criminal Code for example) and there are plenty of cases confirming that amoral but stoutly libertarian principle.
In other words, the Conservatives, in drafting their legislation will be simply making it up as they go along (albeit basing part on an edited version of the ECHR), putting anything in that satisfies the particular bees in the particular bonnets they wear at this particular time. They will seek to impose wholly new obligations on British subjects, never before required of them, seeking to create and preserve some Tory Utopia in aspic – wholly against historic British principles of progress and liberty and against the European Convention position that, however much the “margin of appreciation” operates now, the world should slowly advance towards a set of universally accepted human rights. None of the Conservatives’ “principles” will equate with Germany’s special desire to promote human dignity.
Passing legislation tricked out as a “Bill of Rights” which simply repeals another bit of legislation, the Human Rights Act, that the current governing party does not like is nothing like establishing a set of deeply embedded constitutional principles. It’s just politics as usual. It’s a cod constitution intended to shift power from the people in favour of the governing classes.
See below for materials including UK Supreme Court President Lord Neuberger’s argument for British “exceptionalism” with regard to human rights law
Note: The UK Bill of Rights was supposed to be presented to the electorate in the 2015 general election but never appeared. Michael Gove, new Justice Secretary, intends to act on the manifesto promise to repeal the Human Rights Act and bring in a UK Bill of Rights: “The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK” (Searchable manifesto here). David Cameron has extended this to the European Union’s Charter of Fundamental Rights (essentially the ECHR put into EU law) saying on 20 November 2015:
“So – as was agreed at the time of the Lisbon Treaty – we will enshrine in our domestic law that the EU Charter of Fundamental rights does not create any new rights. We will make it explicit to our courts that they cannot use the EU Charter as the basis for any new legal challenge citing spurious new human rights grounds. We will also examine whether we can go one step further. We need to examine the way that Germany and other EU nations uphold their constitution and sovereignty. For example, the Constitutional Court in Germany retains the right to review whether essential constitutional freedoms are respected when powers are transferred to Europe. And it also reserves the right to review legal acts by European institutions and courts to check that they remain within the scope of the EU’s powers.” Speech to Royal Institute of International Affairs at Chatham House.
Note: A dissection, article by article, of the possible Conservative UK Bill of Rights and comparison with the ECHR appears on Thinking Legally: Conservative bill of Rights: The State v The People
Here is an examination of five recent Human Rights Act Cases that would probably have been “struck down” under the Conservative policy of closing off “trivial” claims: Are these cases trivial?
Lord Judge-made law without the ECHR bits and
The holy alliance to capture the British constitution for thoughts on the original 1689 Bill of Rights
The Conservative Government has now (Feb 2016) launched the notion that the UK Supreme Court should become a constitutional court, basically to serve the requirements outlined above. The notion is critically examined by Jeff King here: UK Constitutional Law Association
This by Roger Masterman (The Mirror Crack’d) considers the “mirror principle” (that UK courts should follow, not merely consider ECHR jurisprudence – see R v Special Adjudicator ep Ullah (2004) and has a useful list of cases in which courts have considered exceptions to it.
This by Aileen McHarg examines the notion that ECHR human rights are “built into the 1998 Scotland Act [and] cannot by removed [by Westminster]”: Will Devolution scupper ‘British Bill of Rights. But based on the analysis of this post, would the Conservatives object to the Scots or Northern Irish or even the Welsh having a different human rights regime than England?
Here is an examination by Fullfact of what changes the Conservatives might make.
Lord Neuberger, president of the UK Supreme Court, has now (February 2014) weighed into the debate using the Cambridge Freshfields Annual Law Lecture 2014 to consider Britain’s (or at least England’s) reluctance to accept foreign judicial authority. He sees such qualms as being based in the country’s history – island nation, protestantism and national religion, democracy without revolution, parliamentary sovereignty, common law (rather than civil code) system, world empire and Commonwealth, “special relationship” with USA etc.
Echoing the Conservative argument above he says: “the fact that Germany has a Constitution enables a German court to say that German law sometimes trumps EU law. This is an option which is much more rarely, if at all, open to a UK court as we have no constitution to invoke”. He notes that the Common Law has had to engage with Europe so that: “the Common Law has not just had to accommodate respect for privacy and family life [ie via “horizontality”, explained here]; it has also had to accommodate a positive right to freedom of expression, freedom of religion, freedom to marry, and much more besides”. There has been a more “principled” approach to judicial decisionmaking , reflecting the European civil law tradition as opposed to Common Law pragmatism.
He notes, however, the European (Norman French) origin of Common Law and Equity and the fact that England’s admiralty law was based on a civil system. (The latter was intended as a system of international law and purposely constructed as a civil system to attract legal business to English courts.) “So the idea that English law developed as a self-contained system is quite misconceived.” Thus Neuberger has set out reasons, though not justifications (he accepts) for a sense of English exceptionalism but also evidence of Anglo-European legal engagement and cross-fertilisation over the centuries – producing a hybrid (my word, not his) legal system.
He says: “Those who favour pulling out of the European venture, or at least reducing the UK’s involvement in Europe, would no doubt rely on the fact that the UK’s historic and cultural DNA includes many genes which encode for separation and exceptionalism” – the Conservative argument above. But he adds: “Those committed to Europe would rely on the fact that the UK has never been disengaged from Europe, and that the current European ventures involve no more than a natural evolution, so that no genetic manipulation is needed.”
Mark Elliott considers Lord Neuberger’s contentioin that Britain has no constitution here
Handyside v United Kingdom
The distributor of the “Little Red Schoolbook” complained on Article 9 (freedom of thought) or Article 10 (freedom of expression) grounds of a magistrate’s court conviction for obscenity and a forfeiture order for the books. The book contained information on sex including addresses for advice. The matter complained of was not obscene in itself but suggested children might be sleeping with their boyfriends or girlfriends and that they might find “good ideas” by looking at pornography. Mention was made of “pictures of intercourse with animals or pictures of people hurting each other in various ways”. The magistrates deemed it likely to deprave and corrupt despite some good features of the book.
The issue for the European Court was whether the restrictions on publication were “necessary in a democratic society”, “for the protection of morals” as per the Art 10(2) qualification of the right of free expression. It was held that Art 10(2) “leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator (ie it is “prescribed by law”) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force”.
So: “It is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.”
This is the principle that the Conservatives seek to exploit by producing a whole set of British beliefs in written form. They will be a distinctively “British” conception of human rights and so, the argument goes, amenable to the margin of appreciation. The Strasbourg court will give them due deference and so make it not worth anyone’s while taking matters to Strasbourg once the UK Supreme Court has given judgment on them.