(a) A statement in concise form of the fundamental personal rights and the right to free political elections, based mainly upon the Universal Declaration of Human Rights.
Memorandum produced in Paris in February 1949 of a committee meeting to plan for a convention on human rights, cited by AWB Simpson, Human Rights and the End of Empire (Oxford, OUP, 2010) 650.[41]
ON 4 JULY 2014 (auspiciously anniversarial), the Guardian’s leader-writer, extolling the virtues of the European Convention on Human Rights and Fundamental Freedoms (to give it its full title, indicating, more than titularly, the distinction between human (natural) rights and civil liberties), asserted that its origins lay in British constitutional history dating back to Magna Carta in 1215.
He writes that the Convention’s contents were ‘written by English jurists in the mid-20th century at a time when all these things were violated in Europe’. Not so. That assumption, widely held, is both historically inaccurate, and internationally geographically misguided. The events of the Second World War and the horrors of the Holocaust provided a strong impetus to the nascent human rights movement, emanating internationally after the League of Nations in 1919 had considered a universal declaration of human rights but rejected its inclusion, above all, for further activity in both the USA and elsewhere in the world. The Convention, signed in Rome in 1950 as the outstanding establishment of the Council of Europe, opted for the city of Strasbourg as the site of the Commission and Court, and was well-founded in the internationalism engendered by the creation of the United Nations in San Francisco.The crowning of the universal declaration of the rights of man came on 26 June 1945. The author was none other than General Jan Smuts, the archetype of internationalism, who declared in his draft preamble to the Charter of the United Nations of 1 May 1945 that the Charter was ‘achieving cooperation in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, language or religion’, one of the very purposes of the United Nations.
It called on the international community ‘to reaffirm faith in fundamental human rights, in the equal rights of men and women...’. Of course, there is a link to the horrors perpetrated by the Nazis during the war; these were breaches of human rights, but no emphasis could be placed on human rights in the San Francisco conference for the Charter of the United Nations. At most, some of the events before 1945 were still percolating into the public domain, but the full extent of the horrendous Holocaust was yet to emerge; much later, it provided further impetus to the human rights movement.The existence of an international instrument, a universal declaration of human rights (which was declared on 10 December 1948 without direct legal enforcement) was novel (in the sense that it was the first document establishing the rights of man), and was ‘based mainly on the Universal Declaration of Human Rights’.[42] The European Convention on Human Rights in April 1950 was the first international treaty additionally to establish the enforcement of the right to individual petition. Therein lies the origin of legal enforcement of the international law of human rights. Its role was separate and distinct from individual rights accrued by nation-states, in which the US was prominent.
Before I allude to the activity of international human rights law, it is important to observe its nature. Strictly speaking, only Articles 2 and 3 of the Convention are a reflection of human rights. Other rights, such as the universal franchise, are conferred on citizens by democratic countries. The former are rights from which member States cannot derogate under Article 15 of the Convention. The rest (effectively Articles 4-12) are civil liberties conferred constitutionally on citizens, all of which are declared to be ‘necessary in a democratic society’ and are qualified serially as matters of public interest. ‘Human rights’ is a catchphrase that has an emotional ring in the public eyes and ears.
They are fundamental rights which are automatically acknowledged by national legislatures. The rest are acquired qualifiedly.Even before the Human Rights Act 1998 became part of UK law and the decisions of the European Court of Human Rights were, by section 2(1) of the Act, to be ‘taken into account’ in deciding cases in the municipal courts of the UK, it was plausibly argued that having regard to decisions of the Strasbourg Court as a test to inform the content of the common law was no less legitimate than referring to cases decided in other jurisdictions. In fact there were additional reasons why the Strasbourg Court should be regarded differently from other international tribunals. For a good many years - at least since the right of individual petition was granted in 1966 - significance was given to human rights issues; they contained values derived from that lowest of common denominators, human dignity and humanity, reflected in the unbroken custom whereby civilised nations adhered to constitutional norms. International human rights norms are intrinsically of higher value in the eyes of domestic courts if there is evidence of consistent state practice indicating the binding nature of such norms. If the concept of equality (now enshrined in statutory form) had become our law before the Human Rights Act, judgments such as Lord Scarman’s dissent in Ahmad v ILEA[43] would not then have been regarded as an exception; he would have treated the development of the common law in the light of not only international standards but also the positive domestic law enacted to implement the principle of equality, including the antidiscrimination legislation. In terms of the development of common law principles, there is surely less, not more in 2014, than any regard to a replacement of the jurisprudence of the Strasbourg Court by a municipal Bill of Rights. The majority in the Coalition’s Commission on a Bill of Rights put far too much emphasis, mis- guidedly, on the practice of the law before the incorporation of the Convention.
They reflected the belief that Britain had uniquely invented effective protection of personal rights (‘it was the land of the free’) going back to Magna Carta, which was the author of the ‘rule of law’. The explanation for the Human Rights Act 1998 isquite otherwise. How did the English courts apply the law after the Human Rights Act 1998 came into force on 2 October 2000?
Time, the historians tell us, moves in only one direction, and legislation is part of historical development that takes us forward and replaces past attitudes. During the passage through Parliament of the Human Rights Bill there was clear warning from the Conservative opposition (which did not object to the principles in the Bill), through its Lord Chancellor-in-waiting, Lord Kingsland, that the provision for interpretation of the Convention into UK law, namely the direction to the courts, was insufficiently clear in its language and unhelpful to English judges. ‘Taking into account’ the Strasbourg jurisprudence and decisions has proved to be the source of a plethora of appellate judgments and academic debate after the famous statement of Lord Bingham in Ullah v Special Adjudicator4 that the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: ‘no more, but certainly no less’. What followed the epigrammatic phrase that Lord Brown cunningly rephrased as ‘certainly no less, but no more’, indicating what Lord Bingham had said, that it was of course open to a judge in the UK to provide rights more generous than those guaranteed by the Convention as interpreted by the Court at Strasbourg. Better to recall the words of the poet George Herbert: the best mirror is an old friend. Whether the phrase could be said to be a ‘mirror’ or a ‘ceiling’ provided the forensic disputation. But did it resolve the question, where on the spectrum did the UK judge’s duty lie?
But Lord Kingsland’s warning was not heeded. So what to do? The hearty dislike, even distaste, among Ministers and other politicians, for the jurisprudence emanating from the Court at Strasbourg and strongly differing from the values of the UK, is signalling a parliamentary re-run of the Human Rights Act, even if the Coalition Government appears to contemplate replacing the wording of section 2(1) of the Act.
The criticism about the proper approach to the Strasbourg jurisprudence has a respectable solution in practice and judicial intercourse, by a judicial dialogue between the two judiciaries. It is a dialogue which happily has a recent example. ‘Taking into account’ a Strasbourg judicial pronouncement (backed by political activity in the Council of Europe) should include a discretion to the courts in the UK to engage in any unresolved point of human rights law in the Convention. After all, the UK judiciary is obliged by section 3 of
The Road to Rome and Strasbourg via San Francisco 53 the Human Rights Act 1998 to treat any human rights issue, as nearly as possible, as making UK law compatible with the rights in the Convention.