An unforeseen consequence of the 1998 Human Rights Act, which brought the European Convention on Human Rights (ECHR) into English law, is that people feel that the rights granted in the Act are in some way foreign. Indeed, our current Prime Minister’s sole intervention in the referendum campaign (when home secretary in April 2016) was to call for the UK to remain in the EU but to leave the ECHR.
Leaving aside the gift that that would be to Messrs Erdoğan and Putin (“If the ECHR is not fit for the UK, how can we possibly remain bound by a system which systematically seeks to limit the powers of the state?”), the premise on which much of the rhetoric against the Human Rights Act is based – ie, that it is foreign – is false for two reasons.
The first is that a principal draftsman of the ECHR was Sir David Maxwell Fyfe (Viscount Kilmuir), and the second is that the rights in the ECHR are, for the most part, also to be found in English common law.
Fyfe was a Scot but one whose path through life had been forged by the struggles of World War II when he served as solicitor general and, above all, as prosecutor at the Nuremberg trials, where he cross-examined Göring to great effect.
But Nuremberg was at that time a bombed-out city with corpses apparently lying in the streets, and the evidence included footage from Auschwitz. In letters to his wife, Fyfe recalled seeing children as young as his seven-year-old daughter going off to the gas chambers with piles of infants’ clothing clearly visible. Responsible for the first draft of what became the European Convention on Human Rights, he described it as a “light” that would be “a beacon to those at the moment in totalitarian darkness and will give them a hope of return to freedom”.
The second reason is analysed in this excellent book by Sir Michael Tugendhat. In a very readable style reminiscent of Lord Bingham’s book on The Rule of Law, he sets out to persuade readers to justify reliance on human rights principles primarily by reference to English common law and statute law, rather than reaching immediately for the articles of the ECHR.
Taking a long historical view, Sir Michael argues that those who, in the late 18th century, framed the first modern declarations of the rights of mankind, set out in those documents “rights which were already enshrined in English common law and statutes”. The framers of the Virginia Declaration of 1776 were not aiming to reform the law but to ensure as best they could that the citizens of the United States would continue to enjoy the same rights as those enjoyed by the English in England.
Similarly, the draftsmen of the French Declaration 13 years later had the American example and also books on English law written by both English and French authors as precedents. Thus what the French declared to be the rights of mankind were already recognised in English law.
This provides the structure of the book, which takes each of the rights found in the American and French Declarations and analyses how they relate to English law at the time. Doing it in this way draws out the relationship between the common law and the civilian code based on Roman law roots. Indeed, such a right-by-right analysis is more reminiscent of the civilian article-by-article commentaries than it is of the standard expositions of common law principles.
A major source used as the touchstone of the state of English common law in or shortly prior to the Virginia Declaration of 1776 is William Blackstone’s Commentaries on the Laws of England, which was widely published and translated into French, German, Italian and Russian, thereby widely disseminating the principles.
Thus succeeding chapters analyse principles such as the rule of law, access to justice, freedom of expression and the right to private and family life. Each such principle is placed in its historical context, giving examples of decided cases from English courts which illustrate the scope of the common law at the relevant time.
This careful exposition of the principles of human rights shows that most such principles were already present in the common law when the Enlightenment declarations of such rights were promulgated.
In the light of current political challenges, such as the debate over whether UK citizens need the protection afforded by the EU Charter of Fundamental Rights, an analysis such as this is particularly useful. The critical issue going forward, if certain sources of rights such as the Charter were abrogated, would be to be in a position to argue cases based on English law alone. This book would facilitate such arguments while at the same time allaying public concern about such rights or principles being imposed from the outside. It is to be warmly welcomed.
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