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However, it must be conceded that the adoption of the Convention has damaged some important and traditional British liberties. This damage has generally been done by British judges, not the Strasbourg court itself. Take the great principle of open justice, expressed in John Lilburne’s demand that his court uphold “the first fundamental right of an Englishman” that “all courts of justice ought always to be free and open . . . no man whatsoever ought to be tried in holes or corners, or in any places where the gates are shut and barred”. Jeremy Bentham’s aphorism that justice must be seen to be done (“Publicity is the very soul of justice. It keeps the judge, whilst trying, under trial”) influenced the Earl of Halsbury’s 1911 statement of constitutional principle: “Every court in the land is open to every subject of the King.” 

But when it came to drafting the Convention, this great principle was watered down to accommodate European systems where justice often was done in secret (The Nazi “morals courts” are a notorious example, but even today Sweden holds closed courts in sexual assault cases — the best reason for Julian Assange to stay in the Ecuadorian Embassy). The weasel words of the Convention, which states that “press and public may be excluded from all or part of the trial in the interests of morals or the protection of private life if the parties so require” has given British judges a dangerous new power, which they have started  to use, to ban reporting and close the doors of the Old Bailey. A British Bill of Rights should strip it away.

Nonetheless, freedom of speech, unprotected in common law, has been much enhanced by Strasbourg itself, beginning with its decision in the Thalidomide case, which forced the UK government to liberalise the law of contempt of court. Its decision on Spycatcher, declaring it a breach of Article 10 for the Thatcher government to prohibit a book available in the rest of the world, was generally welcomed. Then there was the case — Goodwin v UK, in 1996 — where the British judiciary to a man had denied that journalists had any right in law to protect their sources (or that their sources had any right to protection). The European judges decided otherwise, in the interests of investigative journalism. After Rupert Murdoch, in what must rank as the worst-ever breach of journalistic ethics, turned over all his Sun journalists’ confidential sources to the police, it became a matter of some amusement that these journalists — the most rabid propagandists against the Convention — now demanded its protection.

That leaves the word “European” as the most powerful objection to the present Convention — a free kick for those who want it abolished. Liberty, the organisation most publicly opposed to a British Bill, was forced to admit the truth to the 2012 Commission, namely that there is a lack of public understanding and “ownership” of the Human Rights Act. The Commission reported that “many people feel alienated from a system that they regard as ‘European’ rather than ‘British’,” and added that this lack of “ownership” by the public was “the most powerful argument for a new constitutional instrument”. Of course, the answer Liberty comes up with is to provide more money for people to be educated about the European Convention.  A better alternative, perhaps, would be to educate them about the British rights they already own.

The perception that human rights is a foreign concept will not be altered by education about the European Convention, which is couched in sanitised Euro-prose without any reference to the UK’s history and experience. Its preamble is actually dishonest, speaking of “countries which have a common heritage of political traditions, ideas, freedoms and the rule of law”. Can we really ask intelligent schoolchildren to think of our “common political traditions” with Nazi Germany, Fascist Italy and Stalin’s Soviet Union, or before that the “ideas” of Machiavelli, or earlier still the Spanish Inquisition and the continental inquisitorial process that developed from it?
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July 16th, 2015
8:07 AM
Ummm, SOVEREIGNTY, Geoffrey?

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