The Union and the Constitution
Author: Colin Kidd
Date: 2012-08-31T23:00:00+00:00
Keywords: Local government and services
Publisher: History and Policy (historyandpolicy.org)
Rights: Copyright History & Policy, 2012

The Union and the Constitution by Colin Kidd.

Published in Great Britain in 2012 by History and Policy.

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Policy Papers

The Union and the Constitution

Colin Kidd

CONTENTS

- TITLE PAGE
- COPYRIGHT
- POLICY PAPER
- FUTHER READING

Policy Papers

The Union and the Constitution

Colin Kidd

Executive Summary

- The Scottish National Party's (SNP's) independence referendum raises the importance of the Anglo-Scottish Union underpinning the UK's multi-national state.

- Traditionally, on both sides of the border, a consensus prevailed in constitutional law that parliament was supreme and untrammelled. However, within Scotland there has been a growing awareness of the neglected significance of the Union agreement of 1707 in the British constitution.

- The double-layering of the British constitution is under-appreciated. The Union of 1707, a hasty measure devised to confront short-term problems, scarcely dented the well-established contours of the existing English constitution, despite the fact that the Union was supposedly constitutive of a new British state.

- Devolution has brought into focus the incoherence at the heart of the constitution, one of whose most obvious current defects is popularly referred to as the West Lothian Question.

- The British constitution is in a state of transition between an unwritten constitution - with a very wide measure of parliamentary discretion- and a more codified kind of constitution. The question of the Anglo-Scottish Union provides another critical wedge into this debate.

- Thus the current squabble over the nature and timing of the Scottish referendum derives in some measure from two competing notions about the location of sovereignty. Many Scottish intellectuals and politicians - Labour and Liberal, as well as SNP - believe that Scotland has a tradition of popular sovereignty which can be traced back to the Declaration of Arbroath in 1320. The British constitution, by contrast, rests on the idea of the sovereignty of parliament.

- Regardless of the outcome of the Scottish referendum, it seems likely that the British constitution will need to be reframed to take account of the fact that the UK is already a 'state of unions'. If Scotland remains in the Union then the British constitution will need to be clarified. Alternatively, even if Scotland withdraws from the Union, then the surviving state will be an odd ensemble of England, Wales and Northern Ireland whose underpinning principles of unity will be a succession of Acts of union (and disunion) between the sixteenth century and the present. Either scenario presents a pressing need for constitutional reframing.

Introduction

Why does European human rights law privilege the protection of civil and political rights over the protection of social rights? Many historians have described the years immediately following the Second World War as an era of consensus in Western Europe around a welfarist conception of the state. Yet, when the member states of the Council of Europe drew up the European Convention on Human Rights in 1950, they refused to include guarantees of the rights to health, social security and work in this seminal document. The conclusion of a European human rights charter that guaranteed only civil and political rights did not reflect the new functions that Western European states had assumed in the provision of social services. It also appeared at odds with the pervasive disillusionment with classical liberalism stemming from the crises of the interwar period. The framers of the European Convention, furthermore, claimed to be inspired by the Universal Declaration of Human Rights, which the United Nations General Assembly had adopted on 10 December 1948. The Universal Declaration enumerated a wide range of social rights, for the United Nations had signalled that international human rights norms would be premised on both the defence of individual freedom and the promotion of social justice.

Why, then, did the European Convention not guarantee a similar array of social rights? A common explanation - one offered by the Council of Europe itself - has been that the framers of the European Convention were hampered by legal considerations. In this view, the authors of that document felt they had no choice but to exclude social rights because they did not believe them to be justiciable (capable of being settled in court). Cases of violations of these rights were not suitable for adjudication. Any judgments would be difficult or impossible to enforce. Contrary to the received wisdom, however, the reason for the absence of social rights from the European Convention was political rather than technical. Its sources must be located in the pivotal role that a small group of British Conservatives played in shaping the European Convention's outlines before the intergovernmental negotiations over this document commenced. These Conservatives believed that the Labour Party was leading Britain down the path of authoritarian rule. The Attlee government, in their view, was increasingly ready to deny 'personal rights' in the name of protecting social rights. Conservatives active in the movements for European unity envisioned European human rights law as a forum in which the primacy of personal rights could be reasserted over social rights. For this reason, they were willing temporarily to cast aside a long-standing ambivalence towards declarations of rights, concerns over national sovereignty and the constitutional principle of parliamentary sovereignty. In return, they believed that they were fashioning an international mechanism that might prevent the erosion of liberal democracy at home and abroad by the Left, whether communist or non-communist.

Conservative initiative at the Congress of Europe

Although the Attlee government favoured the adoption of a binding UN human rights convention, it objected to the establishment of a supranational human rights court. This was both out of a concern that such an institution might undermine British colonial rule and that it might interfere arbitrarily in the British legal system. The Labour Party, having retreated from its earlier internationalism, showed a pointed lack of enthusiasm for experimenting with radical new forms of international organization and international law that might infringe on national sovereignty. Moreover, since the early 1930s, the British Left had emerged as the most ardent supporter of parliamentary sovereignty, believing that only a government unfettered by traditionally conservative institutions, such as the judiciary, would be able to enact a sweeping programme of social reforms. As regards the creation of a European court, most in Britain associated such schemes with the United Europe Movement, an 'all party' organization chaired by British opposition leader Winston Churchill that many regarded as an instrument of Conservative propaganda. Labour supporters were concerned that British Conservatives might use common European institutions to promote the defence of free-market principles, fearing that the British Right would ally with the continental Right to undermine the Attlee government's economic policies. As a result, Conservatives were able to seize the initiative on the question of European human rights law at the Congress of Europe, a transnational gathering of advocates of European unity held in The Hague during May 1948. The Labour Party's National Executive Committee discouraged party members from attending the Congress and succeeded in dissuading most prominent continental socialists from attending this event. The Labour Party had justifiable grounds for suspicion: The Joint International Committee of the Movements for European Unity - the umbrella organization coordinating the event - was under the chairmanship of Duncan Sandys, a former Conservative MP and Churchill's son-in-law. This organization had issued a Political Report drafted under the personal supervision of Sandys that advocated the creation of a European court, to which members of an 'Emergency Council of Europe' could appeal in the case of violations of a 'common Declaration guaranteeing the fundamental personal and civic rights essential for the maintenance of democracy.' No mention was made of the social protections or 'Worker's Charter' of rights endorsed by the Conservative Party in the Industrial Charter that it had issued in May 1947. For the organizers of the Congress of Europe, the boundaries of a future United Europe would be delineated by a classical liberal conception of rights rather than a social democratic one.

An examination of the behaviour of Conservatives at the Congress of Europe reveals how such a transnational space offered a different set of constraints and opportunities than the domestic political arena. British Conservatives wielded a disproportionate influence over the proceedings of the Congress, as the Labour and socialist Centre Left were unwilling to participate at full strength, the communist Left was excluded and many prominent continental Christian democrats were unable to attend due to a concurrent Popular Republican Movement congress in Toulouse and Italian presidential elections. Accordingly, despite the efforts of delegates on the Left, the Congress omitted any references to social rights from its proposals on the subject of European human rights law. Throughout the Congress, Conservatives deliberately set out to fashion a hierarchical understanding of rights, explicitly denying that social rights were as fundamental as civil and political rights. Winston Churchill announced in his opening address to the Congress as its honorary chair, 'In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law. . . . President Roosevelt spoke of the Four Freedoms, but the one that matters most today is Freedom from Fear.' Roosevelt's principle of 'freedom from want' would remain subordinate to 'freedom from fear' throughout the Congress. This was partly a response to the escalation of the Cold War following the communist seizure of power in Czechoslovakia in February 1948. Yet, the Cold War alone does not explain the absence of social rights from the Congress's recommendations on European human rights law. It must also be understood in light of how British Conservatives viewed the totalitarian threat to liberal democracy as coming, not only from communism, but also from the non-communist Left.

Labour's totalitarian temptation

The Conservative MP David Maxwell Fyfe (later Lord Kilmuir) was the author of the human rights provisions of the Congress of Europe's Cultural Resolution. He subsequently became the principal drafter of the human rights convention that the European Movement submitted to the Council of Europe for consideration in July 1949. During the summers of 1949 and 1950, Maxwell Fyfe chaired the Legal Committee of the Council of Europe's Consultative Assembly, which was responsible for reformulating the European Movement's draft in terms that would be acceptable to parliamentarians from the Council of Europe's member states. In turn, the Legal Committee's report was decisive in determining the categories of rights that would be safeguarded in the final European Convention on Human Rights drafted under the supervision of the Council of Europe's Committee of Ministers in 1950. As such, Maxwell Fyfe was the single most influential figure in framing the normative content of European human rights law. Maxwell Fyfe was also a fiercely partisan 'free enterprise' Conservative MP who was convinced that Britain was becoming a totalitarian state under Labour rule. Having served as deputy chief British prosecutor at the Nuremberg trials, he frequently compared the Attlee government's policies - whether on the establishment of 'closed shop' unions, controls on the press or the curtailment of parliamentary debate - to those of the Nazi regime. Maxwell Fyfe's enthusiasm for the creation of a European human rights court reflected his view that an independent judiciary was the ultimate check against the Labour government's ability to abuse its growing powers. A consistent theme in Maxwell Fyfe's speeches and writings was his concern that the executive, whose size and reach had expanded over the course of the war, had usurped the legislative function of parliament and destroyed the independence of the judiciary. After the Conservative Party conference in Blackpool in October 1946, Maxwell Fyfe wrote an opinion piece in the Sunday Chronicle in which he asked 'whether the advance of European freedom had even in its home got bogged down in the morass of regimentation.'

In a private memorandum from 1948, Maxwell Fyfe singled out in particular the pernicious consequences of the passage of the Emergency Powers Act and the Defence Regulations of 1939. These had resulted in 'far reaching and dictatorial provisions' in the realms of 'Industrial and Economic Control' and 'Labour Direction', measures that the Labour government had prolonged into peacetime. In this document, Maxwell Fyfe described Britain's domestic situation in dire terms, writing, 'The legal power of the executive is now in theory as great as that enjoyed by the regimes of Hitler and Mussolini... Conservative failure at the election will certainly result in the eclipse of democracy in this country.' He recommended that the Conservative Party engage in 'educating the electorate to the fact that the legal structure of a totalitarian dictatorship is already in print in the form of the emergency legislation' and that, if the Conservatives should win the next general election, they should engage in an '[o]verhaul of the relations between the law-making body and the judicial tribunals administering it to ensure freedom of decision for the latter unfettered by administrative direction.' For Maxwell Fyfe, international human rights norms were not only for export. He had already been one of the first MPs to draw on the work of the U.N. Human Rights Commission during parliamentary debates on domestic issues. In December 1947, he had made mention of the provisions on the prohibition of compulsory labour in a draft U.N. bill of human rights while speaking out in the House of Commons against the 'Registration for Employment Order', a planning scheme that directed 'unproductive persons' to work in vital industries. After the adoption in December 1948 of the U.N.'s Universal Declaration, Maxwell Fyfe would refer to that document to condemn the British government's domestic policies. Despite the non-binding character of the Universal Declaration, Conservatives and Liberals would cite it throughout 1949 to bolster their case against domestic legislation affecting civil liberties, trade unions, property rights and the free choice of employment.

Showdown at the Council of Europe's Consultative Assembly

Maxwell Fyfe's references to international human rights norms in parliamentary debate, his warnings that Britain was descending into totalitarianism in public speeches and the concerns over Labour's authoritarian impulses expressed in private memoranda begin to suggest that he conceived of European human rights law as an extension of his domestic political campaign against the purportedly totalitarian tendencies of the Attlee government. The inaugural sessions of the Council of Europe's Consultative Assembly during the summer of 1949 provide further evidence for this claim. It was the Conservative elements of the European Movement, rather than states, that acted as the catalyst for the adoption of the Consultative Assembly's resolution on human rights of 8 September 1949. This resolution in turn would prompt otherwise reluctant governments to begin negotiations over a binding European Convention on Human Rights. Conservatives emerged victorious from the Consultative Assembly's debates on the question of human rights in that they persuaded a majority of delegates to accept that social rights should not be guaranteed in a European human rights charter. In the Consultative Assembly, Maxwell Fyfe called for the safeguard of 'basic personal Rights' or 'negative Rights and freedoms', alone. He explicitly rejected the Universal Declaration paradigm of the U.N. by stating outright that 'so-called economic or social Rights' contained therein would not be included in a European human rights charter. Describing 'positive rights' as 'too controversial', Maxwell Fyfe challenged the notion of a social democratic post-war consensus.

British Labour delegates accused the Consultative Assembly's Legal Committee, which was under the chairmanship of Maxwell Fyfe, of having drafted a European human rights charter that would act as a vehicle to undermine their economic and social agenda. One Labour MP described the proposed convention as 'anti-democratic and reactionary,' using the example of how the U.S. Supreme Court had acted to overturn New Deal legislation on what he considered the flimsiest of pretexts. Yet, delegates on the Left were unsuccessful in their efforts to amend the Legal Committee's report so that the proposed European human rights charter would safeguard the social rights enumerated in the Universal Declaration. On 8 September 1949, the Consultative Assembly endorsed a draft human rights convention that did not include guarantees of social rights. While the British Conservatives who were present at the debate voted for the resolution, the vast majority of the British Labour delegation that was present abstained. Indeed, the only delegate in the entire Consultative Assembly who voted against the human rights resolution was the Labour MP Will Nally. The Labour politicians who abstained or voted against the Legal Committee's report were expressing their distaste at its association with the predominantly classical liberal worldview that had been at the heart of the campaign for a European human rights court ever since the Congress of Europe. They understood that British Conservatives were deploying the new language of international human rights law as part of a rearguard action against the sweeping reforms already realized or envisioned by the Labour government at home. If the Left was mistrustful of the Right's intentions, then the converse was also true. Conservative delegates subsequently reported to Churchill that their Labour counterparts had not voted for the Legal Committee's report because they 'considered its adoption an impediment to their doctrinaire plans for an authoritarian state.'

The Attlee Government's response

One of the greatest obstacles to securing support within the Attlee government for the European Convention was its association with classical liberal economic principles. In a cabinet meeting of 1 August 1950, Stafford Cripps, Chancellor of the Exchequer, became outraged when the Foreign Office informed him of the results of the negotiations between experts and senior officials representing the member states of the Council of Europe. According to the minutes, Cripps declared, 'The draft Convention would be acceptable only to those who believed in a free economy and a minimum amount of State intervention in economic affairs.' Herbert Morrison, Lord President of the Council, added, 'Tories would enjoy supporting something embarrassing to 'planning' Governments.' Cripps agreed, stating, 'This Convention would enable British Conservatives to object at this court to a planning regulation.' Lord Chancellor William Jowitt subsequently wrote to Hugh Dalton, 'It is quite obvious to me that the draftsman, whoever he may have been, starts with the standpoint of a laissez faire economy and has never realised that we are now living in the age of planned economy.' Conservative MPs argued forcefully for the European Convention's ratification in the House of Commons immediately following the signature of the document on 4 November 1950. By that time, the Attlee government, of its own initiative, had decided to take rapid action to combat its growing reputation as a 'bad European' as a consequence of its hesitation in endorsing more ambitious plans for economic, political and military integration. Britain became the first state to ratify the European Convention, doing so on 8 March 1951. Britain did not, however, recognize the jurisdiction of a European Court of Human Rights. The new Conservative government elected in October 1951 also failed to take these steps. With the progenitors of the European Convention in power, the document was simply a symbolic affirmation of classical liberal principles. Like their Labour predecessors, British Conservatives came to believe that they did not need any such additional defence of human rights at home.

Conclusions

This paper has revisited the genesis of European human rights law by examining it through the lens of the political conflicts underway within Britain during the period immediately following the Second World War. Free enterprise Conservatives such as David Maxwell Fyfe viewed a European human rights charter as a means of recasting their domestically-contested views as the foundation stones of a united Europe. Conservatives sought to counter the perceived slide towards totalitarianism in Britain by deploying the resources of new international non-governmental organizations, such as the movements for European unity and new international institutions such as the Council of Europe's Consultative Assembly. The dynamic approach that the European Court of Human Rights has adopted in interpreting the European Convention should not obscure the origins of this document as a product of Conservative politics. In recent years, the European Court has, for example, extended the European Convention's provisions concerning the right to life and the right to a fair trial to areas related to the right to health and to social security. Yet, one must not lose sight of how the original framing of a European human rights charter without guarantees of social rights signalled a defeat for those who had hoped that the document would enshrine social democratic principles in international law. Such an outcome was neither preordained nor definitive. A greater appreciation of the historically contingent nature of this event and of the highly variable political meanings that can be enshrined within different formulations of 'Human Rights', might open our eyes to all the possible forms they may have taken and may still take in the future.

About the author

Colin Kidd is an historian specialising in American and Scottish history. He is currently Professor of History at University of St Andrews, after serving as Professor of Intellectual History and the History of Political Thought at Queen's University Belfast, where he has worked after leaving the University of Glasgow in 2010.

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