Former British Prime Minister Winston Churchill (1874 - 1965) addresses a banquet at the Waldorf-Astoria in New York City, 15th March 1946. He is calling on the United Nations Security Council to check Russia's post-war movements. (Photo by Keystone/Hulton Archive/Getty Images)

The myth of Winston’s legacy

The European Court of Human Rights was never a Conservative project


This article is taken from the March 2023 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

As the government makes noises about leaving the European Convention on Human Rights for the umptieth time, defenders of the Strasbourg regime have added an effective new argument to their rhetorical arsenal. The UK should not leave the ECHR, they say, because the ECHR was a British creation, and even a Tory one. Leaving the ECHR would be rejecting the sacred legacy of Winston Churchill, and surely no self-respecting Conservative could engage in what amounts to right-wing cancel culture. 

It is a line that has been adopted, among others, by Sir John Major, several Guardian columnists, and EachOther, a well-funded charity that aims “to put the human into human rights” through storytelling, the brainchild of the author of a recent book about Covid-19 lockdowns which was reviewed in these pages.

One has to admit that it is a clever piece of rhetoric. It flatters Conservatives’ love for superficial history, invokes the glory days of British power, and fits well with Westminster’s obsession with being “world-leading” as a fig-leaf for national decline. It is also, as it happens, complete nonsense.

It is true that, once out of office in 1945, Churchill made rousing speeches in favour of a united Europe, complete with a charter of rights. But he was characteristically vague about whether the UK would join such a federal entity. Once safely back in Downing Street, he denied that he was ever a federalist, and indeed never showed the slightest interest in the ECHR, allegedly the result of his exertions.

The other dead Tory enlisted for the effort is David Maxwell Fyfe, later Lord Chancellor Kilmuir. Conventionally, he is best remembered for complaining to Macmillan that he had been sacked with less notice than would be given to a cook, to which the catty reply was that it was harder to find a good cook than a good minister.

Maxwell Fyfe was also, unusually among senior British lawyers, a genuine enthusiast for the ECHR, which he helped to draft. Now considered one of its “founding fathers”, he has enjoyed an unexpected revival as the symbol of the Conservative commitment to the European human rights regime. Some of his descendants have even formed a sort of choir which goes around the country singing a song cycle about how their great-grandfather invented human rights.

Quite what the pro-hanging, anti-coloured immigration Maxwell Fyfe, who according to his wife had an innocent man hanged pour encourager les autres, and who insisted he was not “going down in history as the man who made sodomy legal” would have made of his reinvention as a liberal icon by his progeny is best left unimagined.

The ECHR which Maxwell Fyfe negotiated was very different to the version in force today. It contained far fewer rights (the British opposed the inclusion of rights to free movement, asylum, to nationality, and against arbitrary expulsion, none of which made it into the final document). The death penalty was explicitly allowed.

There was a human rights court on paper, but individuals could not petition it unless their country allowed them, and the UK simply refused to accept the jurisdiction of the Court because of the attendant loss of sovereignty, which the Attlee government refused to contemplate. Even then, some ministers opposed the ECHR because they suspected it was a right-wing plot to make economic nationalisation illegal (a belief once shared by a young Keir Starmer).

In the end, Attlee’s cabinet only agreed to sign on the mistaken advice that the Convention was unlikely to make a difference in practice and because joining would make the UK look less opposed to European integration than it actually was. Such was the Labour government’s lack of interest that the foreign secretary did not even bother to go to the signature ceremony, delegating the task to the most junior minister he could find.

almost no politician understood what the ECHR did

Even then, almost no politician understood what the ECHR did, and many were horrified once they found out. When, four years after the Convention entered into force, Strasbourg dispatched a commission of investigation to the crown colony of Cyprus, the foreign secretary, Selwyn Lloyd, told officials he “knew very little about it but expressed dismay and incredulity that the Convention could have got us into this fix and even more incredulity that it applies to so many colonies”.

Another minister whined plaintively that “we never conceived of the Convention being used against us like this”. Lloyd was so enraged by his discovery of what the ECHR did that he wanted the UK to leave it. But officials resisted, successfully arguing that doing so “would expose us to attacks by liberals everywhere”. 

Even Kilmuir, once in government, found himself embarrassed by his earlier exuberant advocacy of a maximalist convention, and had to explain to the House of Lords why he now opposed Britain submitting itself to Strasbourg. The UK would not accept the European Court until 1966, under Harold Wilson.

There may be good reasons to support Britain’s continued membership of the ECHR. That the Convention is somehow a crowning achievement of British conservatism is emphatically not one of them.

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