Leave the ECHR and take back control

It is almost piquant that a flight to Rwanda has sparked off a debate which raises fundamental questions about the nature of law and government and has deep roots in history. This is an issue which many Conservatives have been happy to evade. That is understandable. It is also wrong.

Historians have not finished with explaining the origins of the English Common Law: what a wonderful name. How did the law of Westminster Hall at the beginning of the 12th century become the law of all England by that century’s end? Could it have been because monarchs were distracted by events in Normandy, or by Crusading (Richard the Lionheart) – or, most obviously, by civil war (Stephen and Matilda)? In those circumstances, lawyers would naturally fill the vacuum. Equally, monarchs would use law as a means of enforcing their authority.

Whatever the mechanism, the primacy of the Common Law helped to ensure that England became a unitary state much earlier than the other major European powers, and there was another consequence. In reality, there was no close connection between the Common Law and Magna Carta. But they came to form part of a common mythology. A lot of Englishmen believed that they had rights under laws which even the King had to acknowledge. This influenced the constitutional conflicts of the 17th century. Many of those who opposed Charles I believed that they were merely asserting an ancient order against royal usurpation.

Obviously, the Restoration settlement did not take that view, but nor did it ultimately impede all progress towards the rule of law. As they salute the growth of political stability, even devout Tories should prefer Squire Allworthy to Squire Western and also accept that once the Whigs were free from the taint of regicide, they were sound on most of the big constitutional questions, at least until 1789. Macaulay, their laureate, was right. The Whigs are entitled to a large share in the credit for England’s relatively peaceful political evolution. (Let us leave Scotland and Ireland on one side.)

Credit also belongs to the Common Law. It ranks with the introduction to the Book of Common Prayer as a quintessential expression of English genius. Pragmatic, reasonable without ever exalting reason, always suspicious of extremism: both are embodiments of that most uncommon quality, common sense. Under the Common Law, judges make laws. They do so by reasoning from old principles to new circumstances. Judgments become precedents, not lightly to be disregarded. Stare decisis is a vital component of legal stability. But if the highest Court of all, Parliament, does not approve of the judgment, it can legislate accordingly. Parliament can also pass statutes: Acts of Parliament. In earlier eras, the small “c” conservatives in the legal profession did not approve of too much statute-making. Small “c” conservatives are not always wrong.

It is generally reckoned that the Mansfield Judgment was the Common Law’s greatest triumph. In the early 1770s, in England, a slave called James Somerset ran away from his owners. They wanted him back. The Lord Chief Justice, Lord Mansfield, ruled against them. As there was no law permitting slavery in England, he declared that there could be no slavery. Parliament could of course have passed a slavery act, filling the gap. There was never any question of that. Instead, the Mansfield ruling boosted the abolitionist cause.

A few years ago, a fascinating case reached the House of Lords – the judicial committee, that is, before all this nonsense about a supreme court. A husband had been charged with raping his wife. Until then, the assumption had been that husbands were allowed to demand sex whenever they wanted. The Law Lords were led by Lord Keith of Kinkel. White, male, public school and Oxford, himself the son of a judge, his decision criminalised forced sex within marriage.

John Adams, the second American president, who proclaimed that his country should be governed by laws, not by men, regarded the Common Law as virtually a product of divine providence. Without going as far, many Englishmen took its prestige for granted. Then came the Second World War. It not only shattered cities and lives. It appeared to have shattered legal systems, morality – civilisation itself. Acting out of a profound spirit of “never again”, many thoughtful men believed that Europe could only survive if it created pan-European institutions, including legal ones. Hence, the European Convention on Human Rights (ECHR).

A British lawyer, Sir David Maxwell-Fyfe, later Lord Kilmuir, helped to draft it. It drew on Common Law principles. At the beginning, it seemed to offer no threat to British sovereignty. Even if English lawyers were too polite to say so, the assumption was that it would not really apply to us. The others needed it. We did not.

In the late 70s, there was a momentous case. Some railwaymen who had refused to join a trade union were sacked by British Rail. They appealed to Strasbourg, where the ECHR sat. They won. Tories were delighted. Yah boo sucks, we chortled. That was unwise. We should have argued that there had indeed been a monstrous injustice but that the way to put this right was not via a foreign court. It was through action in Parliament, when we had a decent government. That shortly ensued and the action was taken.

But we now had a foreign court, protean in powers, hungry for more jurisdiction and part of a European federalist syndrome. It was time for Tories to raise the basic point. We could understand why countries with new or fragile legal systems might seek external validation. The new nations of the former Soviet Empire are a clear example. So is Germany, for obvious reasons. Given the shadow of Vichy and the revolutionary tradition of “homicide philanthropy” (Burke’s phrase), the French could also benefit from foreign guidance.

But the UK? It is easy to work out what the ECHR has done for us. Nothing. Its principal achievement has been that the UK no longer controls its own immigration policy.

Four factors have come together to undermine our legal system and our sovereignty. The first is Europhilia; the belief that anything with “European” in its title must be good. The second is human rights. How could anyone object to an institution with those words in its title? The third is rootless adolescent radicalism, as exemplified by the younger Tony Blair and his legal henchman, Charlie Falconer. In their eyes, the more ancient and successful a British institution was, the more it became an object of suspicion: cf. the House of Lords and the Lord Chancellorship. Equally, if British practice diverged from that of other countries, we were self-evidently in the wrong.

The fourth is more sophisticated. A fair number of clever lawyers believe that there are immutable legal principles which apply in all jurisdictions in all circumstances at all times. Liberal justices in the US Supreme Court are an obvious example. The international liberals do offer a clear choice. Do you believe that law should be internationalised and supra-democratic? Or do you believe that the purpose of law is to protect the lives and property of those residing in a particular jurisdiction, and that law should therefore evolve in a dialectic between the legislature and the courts: in our case, the British courts?

For years, there have been attempts to fudge that debate. The confrontation involved in breaking from the ECHR would be extremely disruptive, at a time when economic problems might seem more immediate. If we were to take on Strasbourg and all its works, it would also help to have a Prime Minister, a Lord Chancellor, a Home Secretary and a Foreign Secretary who could command respect. Even so, there will come a point when the fudging has to stop.

When it comes to our laws, we will have to take back control.