The Strasbourg court is anti-democratic, just as its founders intended

Maxwell-Fyfe fought incessantly against socialist ideals in post-WW2 Europe, but to what extent did he sacrifice democracy and human rights in order to reach his goal? What implications have his actions had today?

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In the latest uproar over the European Court of Human Right’s interference in the British criminal justice system, Tories have to confront an inconvenient truth: they have no one to blame but themselves. Rather than directing their fury at foreign judges, Conservative Party leaders should be cursing their haloed predecessors. In the late 1940s, Tory grandees conceived of such a court as a means of constraining parliamentary majorities in Britain and abroad. Foremost among them were Winston Churchill and his former Attorney General David Maxwell-Fyfe. Their tireless campaigning ensured the adoption of the 1950 European Convention on Human Rights. If anyone deserves the blame for the British Government’s current predicament, it is surely these two figures.

Churchill and Maxwell-Fyfe were concerned above all with preventing Western Europe from sliding into totalitarianism.  It was imperative to halt the march of communism and stave off a recrudescence of fascism on the continent. But human rights were not just for export, as there was also a ‘totalitarian’ threat within Britain.  The British state, whose size and scope had expanded tremendously during the war, was now in the hands of the Labour Party. Prime Minister Clement Attlee and his colleagues could not be trusted with such extraordinary powers. Hence the Conservatives argued for a more independent judiciary in Britain and a new ‘Supreme Court’ of Europe. These were desperate rearguard actions against the Attlee Government’s policies, especially its central planning.

Maxwell-Fyfe, in particular, was convinced that Britain was becoming a totalitarian state under Labour rule. After the war, he had earned renown for his deft prosecution of Nazi war criminals at Nuremberg.  But he returned to Britain a haunted man, seeing the ghosts of National Socialism in almost every Labour initiative. As a member of Churchill’s shadow cabinet, Maxwell-Fyfe staged an aggressive defense of free-market capitalism and resisted the leftward drift of his party. Given widespread popular support for some form of social democracy in Britain, his warnings of the perils of ‘squalid pseudo-paradise of Socialism’ fell on deaf ears. 

Maxwell-Fyfe was thereby compelled to look to allies across the Channel. He found them in the movements for European unity, which were largely controlled by neoliberals and bankrolled by big business interests. Much of the Left in Western Europe initially shied away from the cause of European unity, which it saw as a distraction from building socialism at home – or worse, a Trojan horse for assaults on its economic and social agenda. This allowed Maxwell-Fyfe to take the lead in shaping the drafts of a European human rights convention to emerge from the first meetings of the European unity movements and the Council of Europe’s Consultative Assembly. These drafts formed the basis for negotiations between European governments. Against stiff Labour and continental socialist opposition, Maxwell-Fyfe ensured that European human rights law would guarantee property rights, but not the rights to employment, health and social security.  The Left accused him of producing an ‘anti-democratic’ and ‘reactionary’ document, which betrayed the principles enshrined in the 1948 Universal Declaration of Human Rights. It predicted that a supranational court might overturn its postwar achievements, just as the US Supreme Court had attempted to dismantle Franklin Roosevelt’s New Deal.

Maxwell-Fyfe did not originate the proposal for a European human rights court with supranational jurisdiction.  Members of the French think tank, La Fédération, a haven for intellectuals on the French Far Right, were the first to do so. Many of them had worked for the authoritarian Vichy regime during the war and they were united by a single goal: the destruction of parliamentary democracy.  ‘Supranational justice’ was, in their view, a counterweight to ‘tyranny of the majority’ and ‘statism’ – both legacies of the ill-begotten French Revolution. A supranational court was just one prong of a broader attack on the modern nation-state. Their aim was to fill the void created by the decline of the Catholic Church and usher in a second Middle Ages.

Conveniently, such a tribunal might safeguard the civil liberties of those accused of collaborating with the Axis enemy. Advocates of amnesty for collaborators were amongst the most outspoken supporters of a supranational European human rights court. It was for this reason that some Western European governments initially opposed such a scheme. Without the efforts of these right-wing activists, however, it is unlikely that the European Convention would have provided for the right of individual petition.

Of course, the Strasbourg court never did order the release of imprisoned collaborators, much less take action against nationalisation or planning measures, as the Left had predicted.  It moved cautiously in the first decades of its existence, fearful that governments would not recognise its supranational jurisdiction if it overreached itself.  The court has adopted a dynamic approach to interpreting the European Convention, extending its 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.  Nonetheless the court’s political origins have left their imprint on European human rights law, which still safeguards civil liberties and property rights to a greater extent than social rights. 

This history has implications for the current controversy regarding the court’s ruling on life prison terms.  Chris Grayling, the Justice Secretary, is correct that “the people who wrote the original Human Rights Convention would be turning in their graves at this ruling.”  But the most salient issue is not that of original intent but of the anti-democratic character of the court – and by extension, the European project.  The court was not conceived simply as an instrument to combat communism and fascism.  Like other European institutions, it was also intended to curb the totalitarian temptation present in any majority rule democracy. This was understandable in the immediate aftermath of the Nazi genocide and the two world wars. The question that confronts all Europeans is whether these checks on majority rule in the name of protecting democracy and human rights have gone too far.

This article is co-published with historyandpolicy.org.

About the author

Marco Duranti received his PhD from Yale University in 2009 and now teaches history at the University of Sydney. He has been a Fulbright fellow at the European University Institute, a Fox fellow at the Institut d'études Politiques de Paris and a postdoctoral fellow in the Max Planck research group on history and memory at the University of Konstanz. He is writing a book on the genesis of European human rights law for Oxford University Press.