Following Suella Braverman’s outspoken words at the Conservative party conference last year, Tom Blackmore considers the possible implications of the present home secretary’s reforming zeal.
Serious consideration should be given by the Government to developing an effective programme of civic and constitutional education in schools, universities and adult education. Such a programme should particularly focus on questions about human rights, and the balance to be struck between such rights, and individual responsibilities.
Lord Peter Gross, Chairman of IHRAR
This was the first recommendation of the Independent Review into the Human Rights Act chaired by Sir Peter Gross, established when Robert Buckland was Lord Chancellor. The need for such a programme of education has been highlighted in recent months as the institutions and legislation that protect our human rights and fundamental freedoms have become a political football in the tussle for the leadership and soul of the Conservative Party.
I have learnt over the past 25 years that whilst human rights lawyers are brilliant advocates for those they defend, they are, with a few exceptions, lamentable at speaking up for their own purpose, or educating others in the complicated business of rights, freedoms and responsibilities. This failure leaves the field wide open for those who wish to corrode and undermine those rights to grow the power of the executive.
THEN
You cannot understand the present except in the light of the past
David Maxwell Fyfe addressing the Walter Scott Society in Edinburgh 1957
Maxwell Fyfe was one of the ‘artisans’ of the European Convention on Human Rights in the nascent Parliamentary Assembly of the Council of Europe. This work started after the year he spent prosecuting leading Nazis at the Nuremberg War Crimes Trials. He is our guide to that past. He was clear about the Convention in two ways that can cause confusion now.
First, he knew that the Convention was a protection, a bulwark against tyranny, authoritarianism, and against the dictator. He described Europe in-between the wars in this way:
In this situation some lost their nerve and in the years of tyranny that seemed to have been loosed upon the world took comfort in doctrines that exalted authority. They lost confidence in the free legal and political systems which are the heritage and pride … of the Western World.
David Maxwell Fyfe addresses The American Bar Association 1957
As well as this he knew that this ‘loss of confidence’ could happen anywhere at any time if the circumstances allowed it. And that there would always be ambitious people ready to exploit that weakness. As he put it:
The barbarian is not behind us, but always underneath us, waiting to rise up.
Page 138, Revue Internationale de Droit Penal
1948
His view runs counter to that which traps the Convention in its own time, a product of extraordinary history. It is a protection against a clear and present danger.
Secondly, he knew that his work on the Convention was a beginning, a list, a court and a vision. The list was far simpler than that enumerated in the Universal Declaration. The Court was not established for several years. The vision was that individuals bring their government to account for the removal or abuse of their rights and freedoms.
This required an understanding of the role of courts in developing and defending freedoms that all democracies have:
It should moreover be remembered that a substantial part of the liberties enjoyed in countries with long established judicial systems are derived as much from the accumulated precedents of court decisions over a period of years, as from precise laws passed by parliaments.
Preparatory work on article 1 of the ECHR 1949
As a lawyer, he understood the role the European Court would have in building this additional legal system:
The legal interpretation of a new code, however well-defined would present many difficulties. In fact, it is more than possible that the system would not work with full efficacy until a body of European Case Law had been built up and that might take a considerable time.
ibid.
These practical understandings were reinforced by a lively philosophy of the law. In Nuremberg he said:
The law is a living thing. It is not rigid and unalterable. Its purpose is to serve mankind and it must grow and change to meet the changing needs of society.
David Maxwell Fyfe’s closing against the Organisations, at the Nuremberg Trials
And addressing the American Bar Association when they visited to dedicate their monument to Magna Carta in 1957, he said:
Our laws are not static any more than our society or human nature are static. Their roots, well grounded in history and watered by wisdom are constantly putting out fresh branches and leaves for the comfort of all people.
David Maxwell Fyfe speech to the American Bar Association 1957
This legal philosophy was drawn from Fyfe’s understanding of ‘natural law’ and the shared rights and freedoms which belonged to every person. He concluded in Nuremberg with this hope for the trial:
It will be a step towards the universal recognition that:
‘…sights and sounds, dreams happy as her day,
And laughter learnt of friends, and gentleness,
In hearts at peace.’
Are not the prerogative of any one country.
They are the inalienable heritage of mankind.
The Convention was designed to protect from the authoritarian in the expectation that the risk of tyranny is always with us, and constructed so it could grow to deal with change.
NOW
Sam Fowles, a young barrister writing in a recent Big Issue said:
The UK has been sliding towards authoritarianism for years.
Sam Fowles
He goes on:
Democracy is based on the premise that all citizens are equal in dignity. Authoritarians reject that premise. They seek to dominate politics, society, culture, education, and reach into the most private parts of our lives, consolidating power in the hands of a small elite.
Sam Fowles
Fowles has two advantages in his observations. First, he is a constitutional lawyer who has taken part in and recorded cases that illustrate what he is saying. He has written up his records in a book.
Secondly, he has the benefit of comparative youth. Very few people want the slide towards authoritarianism to happen on their watch. We naturally want as a generation to make things better, even when we have in fact, as I discussed five years ago with Patrick Smith of Buzzfeed, made an arse of it. Emerging generations see things momentarily more clearly and it is to them that we should listen.
Fowles article explicitly places the intention to leave the Convention as part of the drift towards authoritarianism. But he is not a lone voice, and those voices come from across the political spectrum. There is a growing recognition that the swelling executive powers of the past 15 years have met an obstacle in the Convention.
Recent opposition has come from Home Secretary Suella Braverman, who put departure from the Convention at the heart of campaign to be Prime Minister this summer. And last week she continued to campaign to leave even though Liz Truss’ government have decided to reject the policy for the time being.
Braverman’s words were revealing:
I don’t think we need to be subject to an institution born out of the post-war era which is a bit analogue in the way that it operates, which has centralised power, which is distant and which is politicised, which is pursuing an agenda which is at odds with our politics and our values.
I don’t think that’s the direction that the world is going in, that’s not the direction that people called for with Brexit.
Suella Braverman, at a Spectator event October 2022
Braverman did not offer any values direction but simply rejected those embedded in the Convention. And she deliberately turned her back on the sacrifice of wars which enabled victory and fuelled the post war settlement and all these years of peace in Western Europe. When she stands in front of the Cenotaph on Remembrance Day perhaps she will hear an echo of the dreams of those who died, were injured, captured and who sacrificed their past for her present.
However, her words simply show that at present the Convention is still doing its job of protecting democracy. Those who wish to expand authoritarianism have a stumbling block and can be checked.
Fowles writes
Oppression takes many forms. It can only be avoided by empowering ordinary people.
Sam Fowles
In Dreams of Peace & Freedom we tell a story of Maxwell Fyfe’s role in the writing of the Convention in his words and the words that inspired him which include the War Sonnet V of Rupert Brooke. Today we release Sue Casson’s setting of The Soldier.
We seek to inform and empower all in the confidence of the protection of their freedom.
And we remain optimistic that tyranny can be resisted. As Maxwell Fyfe wrote:
Let us be of good heart. The ideals which underline our laws have outlasted many tyrannies and have seen the decay and death of many specious theories. The reason why this anvil has broken many hammers is that these ideals are comfortable with the best side of human nature and an expression of the highest reason of mankind.
David Maxwell Fyfe, speech to American Bar Association 1957
Listen to Sue Casson’s The Soldier released on YouTube
Discover the history of the ECHR through the eyes of David Maxwell Fyfe at www.thehumansinthetelling.org
The Human's in the Telling 