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The Convention lay fallow, as an agreement between states, until 1966 when the Wilson government’s reforming Lord Chancellor, Gerald Gardiner, allowed the right of individual petition to the court in Strasbourg, with the UK treaty-bound to honour the judgment. There was no Conservative opposition to this step, which over time unleashed Convention rights to fill many gaps in British law. It began with a prisoner, whom the Strasbourg court insisted should be permitted to read letters from his lawyer, and really took off when the Court insisted that freedom of expression (Article 10 of the Convention) required publication of the Sunday Times investigation of the Thalidomide scandal, which British courts had banned.

Thereafter, Strasbourg acted in dozens of cases to provide remedies for human rights violations which common law could not stop and Parliament was too lazy (or too frightened) to remedy by legislation. Strasbourg decisions required law changes to end discrimination against women, against blacks and East Asians, and then against gays, and to prohibit the caning of children (in that case, against the vigorous dissent of the British judge, who said that he had been beaten at Eton and it did him no harm).

Meanwhile, the case for a Bill of Rights applicable directly in British law gathered apace: the common law was defective, and it took seven years, on average, to obtain a decision from Strasbourg. Strong opposition now came from the Left, influenced by LSE professor John Griffiths, with his book The Politics of the Judiciary. These politics, he argued, were invariably reactionary, and any Bill of Rights would give power to unelected judges appointed by Thatcherite governments to cut back traditional liberties. His thesis seemed to many on the Left to hold good, with the new Industrial Relations court and the idiosyncrasies of Lord Denning, a judge sound on middle-class values of property and freedom of speech but who could not cope with female equality and seemed to think that prisoners, trade unionists, defendants, aliens, blacks, gays and (interestingly) tax avoiders, had no rights at all. At annual meetings of the National Council of Civil Liberties (“civil liberties” were what human rights were then called) the debate see-sawed, as did Labour party policy. But with Denning’s retirement, an increasing willingness of the judiciary to upset government decisions, and the intellectual leadership of Lord Scarman and Ronald Dworkin (who predicted a “culture of liberty”) the case for a Bill of Rights strengthened.

After Labour’s defeat in the 1992 elections, the Society of Labour Lawyers finally decided in favour of a Human Rights Act. They took Roy Hattersley to dinner at Rules restaurant (the worst dining experience he had in his life, he later said) and persuaded him that the party should make this a policy promise. It did, and in 1998, the Human Rights Act made the European Convention part of British law. There seems to have been no debate over whether there should have been a home-grown Charter: the Convention was just sitting there, and was pulled “off the peg”, and without any fuss. Its great attraction to the government was that it fitted with the spin — “rights brought home” — with which the Human Rights Act was sold to the public. This slogan even had a vaguely anti-European flavour — instead of traipsing all the way to Alsace, and waiting years for European judges, we could now have our rights decided immediately by British judges. The danger that the public might turn hostile, or indifferent, to a “European” Convention was not recognised: the Human Rights Act had all-party support. 

For Conservatives, of course, the Convention had been their own work, and they were now in opposition and all too mindful of Lord Hailsham’s warning (when in opposition) against “elective dictatorship”. They were still reeling from the derision heaped upon John Major’s proclaimed alternative to a Bill of Rights, the non-statutory “Citizen’s Charter” which had not been worth the paper on which it had been printed. (Its only practical use had been to encourage public servants to wear name badges and to answer telephones more promptly.) But the most important development which led to uncritical acceptance of the Human Rights Act in 1998 was the Tiananmen Square massacre of 2,000 student protesters — by the very government to which we were about to hand over Hong Kong. MPs of all parties clamoured for the immediate introduction of a Bill of Rights in Hong Kong, and the Chinese pointed out that this would impose on them obligations more onerous than the British government faced under its own right-less domestic law. The UK insisted on the “Basic Law” for Hong Kong, and there was no objection to a quick imposition of a similar basic law which “brought home” the European Convention.

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July 16th, 2015
8:07 AM
Ummm, SOVEREIGNTY, Geoffrey?

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