The New Contexts

I have been told that the ECHR was used against Ken Livingstone’s Fares Fair. Has anyone any details? Richard Johnson writes:

In his first summit as Prime Minister, Keir Starmer said his Government would operate “with a profound respect for international law”. He vowed: “it’s why we will never withdraw from the European Convention on Human Rights”.

Starmer literally wrote the book on the ECHR and the Human Rights Act 1998, which placed the Convention’s provisions into British domestic law. While the Prime Minister has been prepared to be flexible on all manner of other policies, fidelity to international law, regardless of the opinions of the British public, appears to be a core conviction.

In June, the Lord Chancellor Shabana Mahmood addressed the Council of Europe in Strasbourg, where the European Court of Human Rights sits. While criticising the misuse of the Convention in deportation cases, she added: “To be clear, this is not a critique of the Court of Human Rights.” She praised the Convention as “one of the great achievements of post-war politics”.

This was not the sentiment of Mahmood’s predecessor William Jowitt, who served as Clement Attlee’s Lord Chancellor from 1945 to 1951. Jowitt expressed revulsion towards the Convention. “Any student of our legal institutions”, he said, “must recoil from this document with a feeling of horror”. According to Jowitt, the Convention’s provisions were “so vague and woolly that it may mean almost anything”.

As the Labour Government debated whether to sign the Convention in 1950, a ministerial brief warned that the ECHR could be used as a “blank cheque” which would “allow Governments to become the objects of such potentially vague charges by crooks and cranks of every type”.

Cabinet minutes report that the Attlee Government felt “it was intolerable that the code of common law and statute law which had been built up in this country over many years should be made subject to review by an international court”. Labour ministers were even worried that the ECHR’s protections for “free elections” and “political opposition” could be used by rapacious judges to invalidate the entire British electoral system.

The post-war Labour Government believed many of their policies would have been endangered by the Convention. For example, the National Health Service was formed, in part, through the nationalisation of private hospitals with little to no compensation. Labour worried that a Convention which protected rights to private property and placed limits on Government expropriation would have made the creation of the NHS, in its uniquely British form, an impossibility.

Indeed, as historians Marco Duranti and Sanjit Nagi have brilliantly exposed, the European Convention on Human Rights was in large part an effort by European conservatives to stymie socialism. The key British advocates were Right-wingers who saw it as a way of constraining the apparent socialist excesses of the Attlee Government. David Maxwell Fyfe, the Conservative MP who helped draft the Convention, regularly compared Labour policies such as the union “closed shop” to Nazism.

Ultimately, Labour decided for political reasons to sign the Convention. However, as historian Andrew Moravcsik writes, they “treated the ECHR as a declaratory document and made no effort to introduce implementing or incorporating legislation”.

In addition, Labour succeeded in removing some of the most objectionable clauses, including the protection of private property rights, before they signed the Convention. But after Labour lost the 1951 election, the Conservative Government approved re-inserting these anti-socialist provisions in 1952.

As the Attlee and many of his ministers feared, these same provisions were then used by capitalists to sue the next Labour Governments (under Harold Wilson and Jim Callaghan) for their socialist policies.

For example, the Callaghan Government was sued by the erstwhile shareholders in the aircraft and shipbuilding companies who had been nationalised by the Aircraft and Shipbuilding Act 1977 for inadequate compensation. Under parliamentary sovereignty, the British Government has freedom to name the levels of compensation for nationalisation, perhaps offering none at all, but under the ECHR compensation must be “fair” and is reviewable by judges.

The British Government won the shipbuilding case, but socialists were less fortunate in Young, James and Webster v United Kingdom, when the ECtHR ruled that the union closed shop was in violation of the ECHR’s Article 11 freedom of association. Conservatives were finally able to bring about the end of this practice by using the ECHR decision as a pretext for their anti-union legislation.

In the 1990s, New Labour embraced the ECHR through the Human Rights Act 1998, but this was in the context of the triumph of globalisation, the Thatcherite neoliberal consensus, and the death of socialist political economy within the Labour Party. We were told then that it was the “end of History”. Liberalism had triumphed.

But now even figures from the New Labour years argue the new contexts of today require a rethink of Britain’s ECHR ties. Former Home Secretary David Blunkett proposed that the Government temporarily suspend its membership in order to clear the backlog of asylum seekers. Jack Straw, another Home Secretary, has argued that Britain should “decouple” itself from the European Court of Human Right’s interpretations. One Labour MP of 1997 vintage, Graham Stringer, has proposed leaving the Convention altogether.

Starmer recently told his biographer that international human rights was “a sort of lode star which has guided me ever since” his university days. It is a curious fact that the Labour Prime Minister now cheers the very document that previous socialist governments viewed with scepticism and even “horror”.

Starmer’s Government will soon have to choose: does it remain dogmatically tied to the human rights revolution or return to its older principles of national sovereignty, economic planning, and democratic self-rule?