Luke de Pulford is a political adviser. He lives and works in Westminster.
Germany, 8 May, 1949. Berlin remains a mass expanse of heaped rubble. The German people, now in receipt of Marshall Aid, have recovered enough from the crippling hunger of 1947 to attempt the revival of their national identity. The Council of Europe has just been established, and the Roman city of Bonn was playing host to the approval of the Federal Republic’s central document – what we call the German Basic Law.
This document is an extraordinary achievement. Certainly for what it contains, but also for how it came about. Germany, ruined and reviled, had produced something which made the values and structure of the administration under which Nazism had flourished only a few years previously completely impossible. And it boasted that this had been done “free from foreign influences”.
Which is fine, except it’s completely untrue. In reality, Great Britain, France and the U.S. initiated the whole thing, vetted every word the German drafters produced, and insisted that the final version carry Allied approval.
The freedom from foreign influences line was allowed to pass, of course. Nobody wanted another Versailles with its attendant odour of victors’ justice. And the spin worked. You do not need to delve deep into the jurisprudence of the European courts – Luxembourg no less than Strasbourg – to find ample evidence of the export of the Basic Law approach.
But spin it was. The Allies – particularly the British – were utterly instrumental in the German Basic Law. It is what we, the British, thought would prevent another Hitler and safeguard fundamental liberties.
Fast forward a year to the ratification of the European Convention on Human Rights, and, again, British lawyers were right at the heart of the thing.
No spin this time. The ECHR was substantially influenced by us as a kind of Best of British to save Europe from itself. Even Jack Straw was happy to remark that the drafting of the ECHR was “helped in no small way, it must be said, by British lawyers” the evening the Human Rights Act came into force in 1998.
The policy wonks behind the 1998 Act said that they wanted to “Bring Rights Home”. This was partly about giving citizens the ability to appeal to British Courts about human rights rather than having to go to Strasbourg, but it was also about trumpeting Britain’s rightful place in the development of the rights project – in the same way that Euro ’96 was all about ‘football coming home’ in the sense that we invented the game.
So we really must stop pretending that the whole human rights project has been foisted upon us by politically correct Eurocrats. It was substantially our idea. And we were central to the drafting of its core documents. Moreover, those documents – especially the ECHR – contain precisely what British lawyers thought reflected the key British constitutional principles.
Love it or hate it, the ECHR is our Bill of Rights. And not because we are bound by it, but because it is a document drenched in Britishness, with Churchill’s explicit commission and backing. What a preposterous irony that this is the very document that some are keen to undermine on a nationalist ticket.
Of course the ECHR system is not without its problems. The balance of power between our Supreme Court and Strasbourg should and could be sorted. Judicial “corrections” of the statute book – arguably necessary in the early days of ECHR adoption – should be discouraged. But we should not mistake a debate about the European regional courts for a debate about the substantive British rights enshrined in European law.
We should not try to re-invent a wheel which we have already invented. Neither should we throw the baby out with the bath water, to combine metaphors horribly.
There is a strong patriotic argument to be made in favour of the ECHR which leaves plenty of room for criticism of the European Court. Taking this view outflanks UKIP on nationalism, shows that Tories are not reneging on human rights, and puts the real problem front-and-centre. Gove should take note.