Neoliberal Human Rights in Postwar Britain
Neoliberal Human Rights in Postwar Britain
Abstract and Keywords
This chapter traces the free-market conservative origins of the European Convention on Human Rights. In the late 1940s, Winston Churchill and David Maxwell Fyfe, both politicians on the “free-enterprise” wing the Conservative Party, appear to have been genuinely convinced that Britain under Labour rule was entering down the path of authoritarian rule, as the neoliberal economist Friedrich Hayek had predicted. These fears explain why it was they, not British socialists, who took the lead in championing the codification of fundamental rights in international law and the creation of a supranational human rights court with powers of effective judicial review. Churchill and Maxwell Fyfe, moreover, were instrumental in ensuring that social rights would not be safeguarded under European human rights law, against the wishes of continental socialists.
The Demise of Social Rights as European Human Rights
To understand how the European Court of Human Rights came to be necessitates descending from the celestial spheres of Churchillian oratory to the thickets of postwar domestic politics. The domestic political dimension of the genesis of the European human rights system flowed from the indivisibility of European cultural, economic, and political unity. In the spirit of Victorian liberalism, the European unity movements envisioned a European free trade area as the cornerstone of prosperity and liberty. Stitching together the tattered remnants of Europe’s ethical heritage was expected to bring down barriers to commerce within its borders. More urgently, such “spiritual” unity was meant to fortify the last bastions of European freedom against the destructive political tides now sweeping the continent. For conservative Europeanists, the advance of communism was foremost among these, but there were more insidious dangers as well. The creeping expansion of state power, accelerated by the central planning measures and mass mobilization required for victory in total war, had for too long gone unchecked, in their view. They believed that only the recreation of an older European civilization, one predating this pernicious development, could release Western Europeans from the vice of the modern state.
For members of the British Conservative Party at the helm of the European unity movements, civilization denoted the exercise of self-restraint, the fettering of humanity’s base impulses through the organic evolution of custom and law. From their perspective, the social mores and legal systems particular to the democratic nation-states of Europe no longer sufficed for this purpose. Nor did the informal and formal conventions that governed relations between them—or what had been known not so long before as the “society of civilized states.” A whole-scale transformation of the practices and precepts of international law was needed to pave the way for the restoration and reunification of “civilized Europe.” Only thus (p.216) could the barbaric forces unleashed by the frightful total wars of the twentieth century be tamed.
Europe at the end of the Second World War was a space at once marked by devastation and imbued with possibility. With economies crippled and international relief agencies struggling to cope with a massive refugee crisis, the primary concern of many was survival. For others, the postwar moment presented an unprecedented opportunity to carry out a restructuring of the prewar sociopolitical order. The Beveridge Report in Britain, the Charter of the Resistance in France, and numerous other influential wartime texts had called for the implementation of sweeping social reforms. Many conservatives in the coalition of forces arrayed against the Axis and its collaborators, acutely aware of the widespread public disillusionment with laissez-faire liberalism, accepted that some form of social democracy would emerge as the hinge of postwar politics.1 This did not mean, however, that they endorsed the more dramatic scale of state intervention in peacetime economic and social affairs that most socialists demanded.
The leftward shift in popular and elite opinion over the course of the “People’s War” coincided with a public debate over war aims in the Anglophone world, in which the place of human rights in the postwar international order became an ever more popular subject of discussion. Proponents of international human rights protections for the most part rejected the assumption that human rights were restricted to those negative liberties that protected the individual from arbitrary interference by the state. At the outset of the conflict the British socialist author H. G. Wells advocated the adoption of an “International Declaration of the Rights of Man,” including “the rights to nourishment, housing, and medical care, to education, freedom of discussion, association, and worship, to work,” among others.2 The Atlantic Charter concluded between Britain and the United States in August 1941 envisioned a postwar order built on “freedom from want,” as well as “improved labor standards, economic advancement and social security.” The American Law Institute issued a “Statement of Essential Human Rights” in February 1944 calling for the defense of not only civil and political rights, but also the rights to social security, to employment, to decent working conditions, to food, and to shelter.3 In An International Bill of the Rights of Man (1945), Hersch Lauterpacht advocated the codification of these economic and social rights, among others, in international law, though he did not believe them to be justiciable.4
The same trend could be seen among advocates of European federation.5 The European Committee of Federal Union proposed in July 1943 the formation of a European federation inspired by the Atlantic Charter and Churchill’s appeal for a Council of Europe. Membership was to be contingent on “the state concerned having a democratic constitution” and “its acceptance of the Charter of Political and Economic Rights on which the Federation is based.” The “Rights of the People in the Federation” as enshrined in the (p.217) federal constitution, comprised, in addition to an array of civil and political rights, property rights, “[e]conomic security and the right to adequate food, clothing, housing accommodation and social services.” A “Federal Supreme Court” with powers of judicial review akin to those of the US Supreme Court was to have jurisdiction over violations of all these rights, including economic and social rights.6 The Juridical Committee of the Pan-European Conference and Research Seminar for European Federation in New York had drafted a European constitution in March 1944 that safeguarded an even more extensive array of economic and social rights. However, only cases involving violations of classical liberal freedoms were subject to the jurisdiction of a federal “Supreme Court” along the US lines, which would serve as “the final Court of Appeal for proceedings arising in the sphere of the individual’s basic human rights.”7
By the end of the war, the influence of such English-language texts began to be felt in the continental Resistance. In May 1944, anti-fascists from across Europe met in Geneva to draft a joint manifesto that stipulated that a European federation “must be based upon a declaration of civil, political and economic rights which would guarantee the free development of the human personality and the normal functioning of democratic institutions,” as well as a “declaration of the rights of minorities.” A “supreme tribunal” was to have jurisdiction over disputes regarding the interpretation of the federal constitution, but only those arising between states, and no provision was made for it to have powers of judicial review.8
These projects for a European federation, though careful to exhibit no bias in favor of any one group within the wartime anti-fascist coalition, were all compatible with social democratic principles, even if not all their adherents described themselves as “social democrats.” An arch-conservative such as Richard Coudenhove-Kalergi could write in 1943, “Some will prefer the Russian example of social equality without liberty—and others the American example of liberty without social equality. But most of the Europeans will hope for some compromise, uniting the western ideal of liberty with the eastern ideal of equality—a European federation, more democratic than Russia and more socialist than America.”9
In the war’s aftermath, continental assemblies drafted constitutions that guaranteed a wide array of social rights, while the Conservative Party in Britain accepted the legitimacy of some of the Labour government’s nationalization and social welfare measures. Just as the word “justice” in the abstract now referred more often than not to social justice, so did, too, did “citizenship” come to entail social citizenship and “democracy” come to mean social democracy.10 Some historians speak of a social democratic consensus in postwar Western Europe, with democratic socialism one gradation to the left and Christian democracy one gradation to the right.11
One might have expected that a European human rights treaty would also have had a similar orientation. After all, there appeared to be a consensus (p.218) among all delegations to the United Nations, including those from Britain and the European continent, that human rights encompassed a plethora of civil, political, economic, social, and cultural rights. The nonbinding Universal Declaration of Human Rights adopted by the UN General Assembly in December 1948 enumerated an extensive set of rights in all these categories. A majority in the General Assembly insisted, moreover, that the United Nations conclude a binding international treaty of a similar breadth.
In the case of European transnational movements and organizations of states, however, this was not to be. The adoption of the European Convention on Human Rights in November 1950 and its First Protocol in March 1952 marked more than a momentous step forward in the genesis of international human rights law. It signified a rejection of the expansive understanding of human rights enshrined in the Universal Declaration and the emergence of a transnational conservative countercurrent to domestic policies implemented in recent years at the level of the nation-state. Although the ECHR’s preamble referred to the Universal Declaration, the categories of rights it safeguarded signaled a major setback for those who believed that the rights enumerated in the Universal Declaration were indivisible and should be effectively guaranteed in equal measure. The ECHR omitted social rights and referred to “political democracy” as a core European value without any reference to social justice. Its First Protocol codified the education and property rights sought by conservatives, but not the rights to employment, health care, social security, and a minimum level of schooling. The rights guaranteed in these two treaties had first been agreed upon in the Council of Europe’s Consultative Assembly, where the European unity movements held sway. The revival of popular faith in democracy during the Second World War had been characterized by the simultaneous flourishing of two strands of democratic thought, one that placed an emphasis on individual freedom and the other on social equality.12 The Council of Europe, rather than continue to develop both tendencies, exalted the former and ignored the latter.
Before the signing of the ECHR, few would have predicted that Western European states would have agreed to the establishment of a human rights court with supranational jurisdiction—that is, a permanent international court able to issue judgments binding on states on the basis of claims of rights violations submitted by private individuals of any nationality without the sponsorship of another state party. Outside the European unity movements, this had only shortly before been roundly considered a fantastical proposition, not simply because no accord had ever granted an international tribunal such powers. With a handful of partial exceptions, never before had European states permitted their own domestic courts from exercising comparable powers of judicial review. Certainly, this was anathema to the principle of parliamentary sovereignty at the basis of Britain’s constitutional monarchy and the principle of popular sovereignty at the core of French republicanism. (p.219) Moreover, colonial powers feared that any international body with the authority to deal with complaints from nonstate entities could provide a platform for anti-colonial forces in their overseas territories.
What can explain, then, why the European unity movements championed the creation of a supranational human rights court when such a body was contrary to the doctrine of noninterference in the domestic affairs of states enshrined in the UN Charter, alien to their members’ national legal traditions, and a potential threat to colonial rule? The answer is to be found in the momentary anxieties of British Conservatives and French Catholics in the European unity movements over what they believed to be the gradual erosion of democracy and human rights within their own countries at the hands of the Left. Within the framework of the European project, human rights law became a conduit for the reformulation by elites of older conservative political languages in a new internationalist idiom. Between 1946 and 1950, free-market and social conservatives launched their own human rights revolution, shifting the ideological orientation of the nascent European human rights system in their favor. In doing so, they harnessed novel conceptions of international law and organization to buttress their uncertain standing in the domestic sociopolitical order. Together, human rights and European integration provided conservatives with a new moral and technical vocabulary with which to express minority viewpoints and resist the socialist tide of the postwar era.
David Maxwell Fyfe and Britain’s Totalitarian Temptation
Following the adoption of the ECHR, News from Strasbourg, the official newsletter of the Council of Europe, printed a quotation from a “great European” next to its reproduction of the text of the treaty. “Some five years ago it fell to me to attack the evil organisations of totalitarianism at the Nuremberg trials,” began the published excerpt from David Maxwell Fyfe’s speech to the Consultative Assembly. That Nuremberg played a decisive role in catalyzing his involvement in the creation of the European human rights system is indisputable. At issue is what precisely he learned at Nuremberg about totalitarianism and how this colored his understanding of the postwar world. As Maxwell Fyfe understood well, the Weimar Republic did not fall in a day. Rather, the slide into the abyss began well before a Nazi seizure of power seemed imminent. Parliamentary democracy, it turned out, was more fragile than he expected and its destruction more insidious. A question began gnawing at his mind: Could the same happen in Britain? And might the culprits not be the usual suspects, but rather civil servants and Labour ministers with a penchant for breaking down constraints on the exercise of state power?
Maxwell Fyfe was never personally close to Churchill, who felt distaste toward him and habitually called him “Sir Donald.”13 Perhaps this was (p.220) because he been in the appeasement camp before the war. In any case, Maxwell Fyfe, despite serving as minister in all of Churchill’s governments and as shadow minister during Churchill’s tenure as opposition leader, was never part of his entourage, as Duncan Sandys was. Unlike Sandys, however, he was a staunchly free-market conservative who shared the older man’s distaste for all things socialist.14 Whereas Churchill had acquired an aptitude for issuing vague lofty pronouncements so as to navigate safely the shoals of the political scene, Maxwell Fyfe could not be bothered to play the game of consensus politics. During the Second World War, he acted in a leadership capacity on the Conservative Party’s Post-War Problems Central Committee. The initial response of that body to the release of the Beveridge Report was that “provision by the state of complete social security can only be achieved at the expense of personal freedom and by sacrificing the right of an individual to choose what life he wishes to lead and what occupation he wishes to follow.”15 Squaring off against reformers in his own party, Maxwell Fyfe opposed postwar plans that envisioned a significant positive role for the state in economic and social policy, instead seeking to keep the committee’s attention focused on undermining Labour’s electoral support.16 During the 1940s, he became known for his staunch defense of free-market capitalism.17
Maxwell Fyfe put aside his fierce partisanship for the duration of the Nuremberg trials. In October 1946, shortly after the International Military Tribunal issued its verdicts, he flew back to Britain to attend a Conservative Party conference in Blackpool. “I have been watching the development of my country 500 miles away for a year,” he told the 2,700 delegates gathered there. “If I have seen one thing clearly—and no one in hell or on earth will prevent me expressing this view on every possible occasion—it is that I have seen the country sacrificed to socialist shibboleths and its people crucified on the cross of dogma.”18 The audience roared in approval. Newspapers were abuzz the next day with speculation that Maxwell Fyfe could replace Anthony Eden as Churchill’s heir apparent.19 Those who had known him as a restrained and careful speaker in his earlier days were shocked at his fiery oratory.20 The Daily Herald suggested that “Sir David exhausted his intelligence at Nuremberg and is now talking hysterical balderdash,” adding that “it ill-becomes a private-enterprise Tory to quote Scripture or even to use scriptural terms as weapons against Socialists who are trying to apply many of the most practical teachings of the Christ who was crucified.”21
Maxwell Fyfe subsequently 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.”22 Following the Blackpool conference, he became one of the most outspoken opponents of the postwar Labour government’s nationalization measures, describing the nationalization of steel as “a step on the road towards totalitarian government in England” and accusing its proponents of “seeking to fuse the Communists (p.221) and Socialists into a united Left movement.”23 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.24
Maxwell Fyfe believed that an independent judiciary was the ultimate check on the Labour government’s ability to abuse its growing powers. A consistent theme in his 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. In private memos to Tory colleagues, he signaled out the pernicious consequences of the passage of the Emergency Powers Act and the Defence Regulations of 1939, legislation that he knew well from having served as solicitor general and attorney general during the war. 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. 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 begin “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 Conservative Party should win the next general election, they should engage in an “overhaul 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.”25
Maxwell Fyfe’s concerns echoed the critique of socialism that Friedrich von Hayek had propounded in The Road to Serfdom (1944). For the neoliberal economist, a parliamentary democracy could be as totalitarian as a dictatorship, particularly one in which the rule of the majority was unchecked.26 The only proven safeguard was the “Rule of Law,” which throughout the text served as a kind of talisman shielding liberty from its assorted foes. “Whether, as in some countries, the main applications of the Rule of Law are laid down in a bill of rights or in a constitutional code, or whether the principle is merely a firmly established tradition, matters comparatively little,” Hayek wrote. “But it will readily be seen that, whatever form it takes, any such recognized limitations of the powers of legislation imply the recognition of the inalienable right of the individual, inviolable rights of man.”27
Hayek’s chief target was not the welfare state but economic planning. This was evidenced in his blistering criticism of the socialist Wells’s wartime proposals for an International Declaration of the Rights of Man. At the outset of the conflict, Wells had envisioned the adoption of such a declaration as a means of preventing the “collectivism” of his proposed socialist (p.222) world state and global planning authority from descending into Nazi- and Soviet-style tyranny.28 The National Executive of the Labour Party had followed suit by calling for “economic planning on a world scale” and a “new Association or Commonwealth of States, the collective authority of which must transcend, over a proper sphere, sovereignty rights,” while adding, “The necessary vigorous power of growth will be lacking if the individual citizen is treated as the slave of the State or is denied such freedom of opinion, speech and faith as is compatible with the freedom of others. These elementary freedoms should constitute a new and worldwide declaration of the rights of man.”29 Members of the British Left envisioned this declaration as a necessary prophylaxis against totalitarianism, one that would distinguish their democratic vision of social justice and planning from an authoritarian one. Wells baldly stated that “what is embodied in this Declaration is a ‘world socialism’ ” and expressed hope that left-wing forces in particular would unite behind it.30
Hayek subsequently expressed his bafflement that “a leading advocate of the most comprehensive central planning like H. G. Wells should at the same time write an ardent defense of the rights of man. The individual rights which Mr. Wells hopes to preserve would inevitably obstruct the planning which he desires.”31 During the late 1940s, similar words would be flung at Labour ministers in the House of Commons. Maxwell Fyfe, among others, would invoke international human rights standards in opposition to the Attlee government’s planning measures. Like Hayek, he believed that judicial safeguards provided a necessary bulwark against the totalitarian temptation present in any majoritarian democracy. Maxwell Fyfe’s overlooked contribution to early neoliberal politics was to imagine the establishment of these institutional structures at a supranational level.
In the final chapter of The Road to Serfdom, Hayek suggested that liberty would be best safeguarded within the constitutional framework of a European federation possessed of a “supernational authority.”
While for its task of enforcing the common law the supernational authority must be very powerful, its constitution must at the same time be so designed that it prevents the international as well as the national authorities from becoming tyrannical. We shall never prevent the abuse of power if we are not prepared to limit power in a way which occasionally may also prevent its use for desirable purposes. The great opportunity we shall have at the end of this war is that the great victorious powers, by themselves first submitting to a system of rules which they have the power to enforce, may at the same time acquire the moral right to impose the same rules upon others. An international authority which effectively limits the powers of the state over the individual will be one of the best safeguards of peace.32
(p.223) It would therefore be incumbent on the Allies to take the unprecedented step of adopting a supranational federal constitution that would constrain the power of their states as well as their organizations of states through some unspecified mechanism. Only in this manner, Hayek implied, could the poison of economic planning be contained.
This passage would not pass unnoticed by neoliberals within the leadership of the postwar European unity movements. On December 2, 1948, René Courtin, the director of the French Council for a United Europe, would write Albert Hunold, secretary of the Mont Pèlerin Society, a transnational association of neoliberal intellectuals, “Although I must be neutral with regards to proposals for a European constitution, I am persuaded that there we have the only possibility of creating a framework for neoliberalism. Hence I am serving two causes that are equally dear to me.”33 Courtin himself played a supporting role in the genesis of the ECHR, deciding along with Duncan Sandys ahead of the Congress of Europe that all future members of a European union should be required to adhere to such a treaty and later participating in a committee of jurists responsible for producing a draft in advance of the first session of the Council of Europe’s Consultative Assembly.34
Labour’s Loss of Initiative
Hayek had written The Road to Serfdom as an act of defiance against what he saw as a dangerous realignment in European politics. In the aftermath of the Second World War, there existed at least a nominal recognition across the political spectrum of the importance of balancing the principle of individual freedom with that of social justice. The new postwar constitutions on the continent and the postwar policy statements of the major British political parties made commitments to the defense of citizens’ economic and social rights. This was evidenced most prominently with the publication in May 1947 of the Industrial Charter, a Conservative Party manifesto drafted primarily by reformers within the party led by R. A. Butler, director of the Conservative Research Department. This document tacitly accepted many of the policy objectives of the Attlee government, namely, a mixed economy, full employment, education as a means of achieving equality of opportunity, the welfare state, and a limited degree of economic planning. Included was a “Worker’s Charter” that guaranteed “security of employment.”35 Even many who privately recoiled at any suggestion of excessive state intervention during peacetime, including Churchill and Maxwell Fyfe, publicly endorsed the Industrial Charter despite their deep-seated reservations over its “pink Socialism.”36
The Industrial Charter by no means retreated on all fronts, offering an impassioned defense of free enterprise, local government, and civil society, (p.224) as well as a withering critique of the Attlee government’s excessive interference in domestic economic affairs. “Our abiding objective is to free industry from unnecessary controls and restrictions,” it asserted at the outset. On trade union policy, the document challenged Labour’s support for closed shop, arguing, “The voluntary basis of membership is the best. It must be a fundamental principle of the freedom of the worker that he should have the right to belong to that union which he considers best represents his interests.” The Conservative Party explicitly cast the Workers’ Charter, which it had no intention of codifying in an act of parliament, as an alternative to what it described as a socialist model of labor relations based on class conflict and the pursuit of material interests alone. “Our policy is to humanize, not to nationalize,” began the Workers’ Charter, meaning that the most fundamental of rights was “the right of the individual to develop his or her personality.”37 These words could have easily been expressed by a Catholic conservative politician on the continent.
Maxwell Fyfe himself authored the section of the Industrial Charter concerned with the pernicious effects of monopolies, a central neoliberal concern. One hears his voice, and by extension that of neoliberal economists such as Hayek, in the warning, “If all industries were nationalized Britain would become a totalitarian country. If only a few industries are nationalized, they become islands of monopoly and privilege in a diminishing sea of free enterprise.”38 When in July 1949 the Conservative Party issued its second major postwar manifesto, The Right Road to Britain, it reformulated this statement in terms of British culture and values: “Only by strengthening Britain’s traditional way of life can the forces of totalitarianism be repelled.”39
As the Conservative Party was in the midst of rebranding itself, Labour at first appeared in a strong position to take the initiative in bringing together the states of Western Europe under the banner of social democracy. British foreign secretary Ernest Bevin on January 22, 1948, called in the House of Commons for the creation of a “spiritual union” of nations based on a shared set of Western European values that included both “our Parliamentary democracy” and “our striving for economic rights.”40 Attlee, for his part, spoke of human rights as a basis for Western European unity, framing their realization in Britain as a product of proletarian struggle. “In the long fight of the working class,” he declared, “there have been many battles for human rights, freedom of speech, conscience, public meeting, the vote, personal freedom, the right of association, and the right to work.”41 That same month, Bevin submitted a paper to the British cabinet that maintained, “It is for us, as Europeans and as a Social Democratic Government, and not the Americans, to give the lead in [the] spiritual, moral and political sphere to all the democratic elements in Western Europe which are anti-Communist and, at the same time, genuinely progressive and reformist, believing in freedom, planning and social justice—what one might call the ‘Third Force.’ ”42
(p.225) That same month, the venerable socialist (SFIO) politician Leon Blum called for the construction of a united Europe on a center-left basis. For Blum, the unification of Western Europe could be achieved only if its proponents steered clear of the Scylla of liberal capitalism and the Charybdis of communist collectivism. In the pages of the January 6 edition of his party’s daily, Le Populaire, he wrote,
Between the United States, “champions of individual liberty and the rights of man,” but where the capitalist economy is fully maintained … in all its inhumane severity, and the Soviet Union, which has destroyed capitalist private property but has also eliminated all individual, civic and social liberties, there is a place for nations which want both personal liberty and a collective economy, democracy and social justice. That is, between American capitalism—“expansionist” as are all capitalist societies in their ascendant phase—and the totalitarian and imperialist communism of the Soviets, there is a place for social democracy, a place for socialism. It is neither an exaggeration nor a presumption to affirm that democratic socialism represents at present the predominant aspiration of old Europe, especially of Western Europe.43
Twice prime minister of France and a perennial target of anti-Semites on account of his Jewish heritage, Blum was no stranger to contentious politics. Even so, here he clung to a vision of a “social democratic” or “democratic socialist” consensus across Western Europe, despite the increasingly marginalization of the Left in much of the region, including France. While explicitly lamenting the absorption of socialist parties into communist parties in the East, Blum was implicitly defying the growing strength of conservatives in the West. With the exit of communists from the French government in May 1947, his socialists now found themselves on the leftward fringe of governing coalitions that included ever greater numbers of conservative parliamentarians. They could do little to stop the increasingly orthodox liberal orientation of French economic policies. His elision of social democracy with democratic socialism was telling, for many socialists viewed the former as an expression that their conservative opponents employed to soften their rejection of socialist policies. Whereas even many free-marketers by now described themselves as favorable social democracy, which implied no more than support for some form of welfare state, democratic socialism implied more dramatic state intervention in the economy.
On the other hand, no French government at the time dared to reverse the nationalization, planning, and social security measures already adopted in the aftermath of the war. Blum was still correct that the majority of Western Europeans, regardless of whether they identified as social democrats, supported a stronger welfare state than had existed before the war. It was in this sense reasonable that he would expect that economic democracy and social rights would be as much a pillar of Western European unity as political democracy and civil liberties.
(p.226) Yet, Bevin would not hear of a European assembly. “I don’t like it,” he is said to have exclaimed upon first hearing of the idea. “When you open that Pandora’s box, you will find it full of Trojan horses.”44 The Attlee government, outside of participating in the Organization of European Economic Cooperation born of the Marshall Plan and the Western European military alliance known as Western Union, hesitated to support the more supranational forms of European integration that the European unity movements were demanding. The Labour Party, retreating from its interwar 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.45 When, in December 1940, Clement Attlee had declared, “We believe that we should expand further our political, personal and economic liberties,” he had immediately followed this statement with a qualification: “We cannot lay down the law to the rest of the world … we can only say, ‘Here is our way of life and the best way we can advocate those principles is by striving more and more to live our principles of freedom and social justice here, and set an example for the rest of the world.’ ”46
This attitude made the Attlee government reluctant to put forward its own proposals for the creation of international mechanisms for the implementation and enforcement of human rights standards. Although supportive of the adoption of a binding UN human rights treaty, it was adamantly opposed to the creation of an international human rights court out of a weariness of external interference in its domestic legal system and its imperial affairs.47 As for activists on the British Left who had supported Wells’s proposal for an international human rights declaration at the outset of the Second World War, such as those in the National Council for Civil Liberties, they failed to mobilize effectively in favor of international human rights initiatives after the conclusion of the conflict due to their inability to adapt their popular front politics to the political realities of the Cold War.48
The Attlee government believed that human rights were for export only. British officials preferred to view human rights questions at the United Nations primarily through the prism of international affairs, seeking to craft a document that could be used as a propaganda tool against the Soviets where they were most vulnerable—that is, in the domain of civil and political rights—without allowing the communist states to take advantage of their perceived strength in the domain of economic and social rights.49 It decided to omit economic and social rights, as well as a number of political rights, from the draft International Bill of Rights it submitted to the UN Human Rights Commission in June 1947. This elicited protests in some quarters. As Bryan King of Cambridge University wrote to The Economist in January 1948, “But need we therefore invoke ‘nature’ against the legal guarantee of at least the rights to education and social security? This smacks, and needlessly, of insincerity, since Parliament in recent legislation has decided against this argument. (p.227) Or is it deference to a Republican congress?”50 The Republican Party, which then held a majority of seats in the US Senate, had been exerting pressure on the Truman administration to not commit the United States to a binding UN human rights treaty.51
Officials in the Foreign Office did not, in fact, deny that economic and social rights constituted what they described as “fundamental” rights.52 Rather, in internal memoranda, they argued against the inclusion of economic and social rights in a UN human rights treaty on the grounds that such questions fell within the purview of other international agencies, such as the International Labour Organization. They warned that attempts to codify economic and social rights would precipitate incessant squabbling between representatives of the United States and the Soviet Union. British diplomatic officials were also concerned that conservatives in “socialist countries” would reframe the right to work as the right to freely choose one’s occupation, which could undermine planning measures, and interpret the right to form and join trade unions as the freedom to challenge closed shop. It was safer, they reasoned, to avoid mentioning economic and social rights altogether than to have them later invoked for controversial ends.53
Since the early 1930s, moreover, the British Left had emerged as the most ardent champion of parliamentary sovereignty, believing that only a government unfettered by traditionally conservative institutions such as the judiciary would be able to enact a sweeping program of social reforms. Although the British constitution was not codified, it safeguarded certain fundamental common law freedoms on the basis of judicial precedent. These were understood to include civil liberties such as habeas corpus and freedom of association, as well as property rights. Yet, the principle of parliamentary sovereignty meant that statutory law could in theory abrogate them at any time.54 As Erskine May’s eponymous guide to parliamentary practice observed, “the power of Parliament” was “transcendent and absolute,” adding, “A law may be unjust and contrary to the principles of sound government: But Parliament is not controlled in its discretion, and when it errs, its errors can only be corrected by itself.”55
During the interwar period, British courts had been active in defending the common law freedoms of property owners against slum clearance, compulsory purchase policies, and new housing legislation. By contrast, the ability of the courts to constrain the powers of the national government would decline precipitously during the war and in the immediate postwar period.56 According to the official commentary appended to the British government draft, “Some countries, like the United Kingdom, have no rigid constitution and, as a matter of internal law, it is not possible to surround any provision [of the International Bill of Rights] with any special constitutional guarantee. No enactment can be given a greater authority than an Act of Parliament, and one Act of Parliament can repeal any other Act of Parliament.”57
(p.228) Another reason why Labour opposed a European human rights court was that most Britons associated such schemes with the United Europe Movement, an “all-party” organization chaired by Churchill that many regarded as an instrument of Tory propaganda.58 Labour politicians were concerned that the Conservative Party might use common European institutions to promote the defense of free-market principles, fearing that the British Right would ally with the continental Right to undermine the Attlee government’s economic policies. A report to the Labour Party’s “Europe Group” in February 1948 argued that the United Kingdom should stay away from European unity projects until more governments had socialist majorities:
Under these political conditions political federation would be acceptable if at all, only to a group of countries with (apart from Britain and Belgium) predominantly right-wing Governments. (Churchill is no fool: he wants to call in Western Europe and the U.S.A to redress the balance in Britain.) Moreover any proposals for economic co-ordination with or without political federation would meet with insuperable obstacles as soon as they seriously touched the private ownership of the means of production or the freedom of private capital investment. Such proposals can only make headway in so far as they are accompanied by a revival of Socialist political strength in Europe. In the present situation such proposals have propaganda value, but not a practical value.59
Emmanuel Shinwell, secretary of war and chair of the Labour Party executive, derided those “utopian schemes for United Europe which start at the wrong end of the stick and disregard the political and economic transformation which has occurred since the first world war.”60 The following month, Western European socialists issued a statement drafted by Labour Party MPs that read, “The ideal of European unity can only be saved from corruption by reactionary politicians if the Socialists place themselves at the head of the movement for its realization. Socialists everywhere must guard against the prostitution of this great constructive ideal into the vulgar instrument of anti-Soviet propaganda, by discredited politicians who hope to rebuild their shattered fortunes under the protection of its popular appeal.”61
The presence of Churchill at the center of the European unity project ensured its rejection by socialists who accurately saw it as an attempt to rebuild the Conservative Party after its devastating defeat in 1945. Liberal internationalists who had once partnered with Labour were drawn into the United Europe Movement, as were some British socialists. Churchill seized this golden opportunity to attract cross-party support. During the interwar period, the Conservative Party had succeeded in splintering the Labour Party by persuading some of its members to join “National” coalition governments. The Labour leadership was determined not to see such a strategy succeed once more.
British Conservatives wielded a disproportionate influence over the proceedings of the Congress of Europe. Not only were communists excluded, but many prominent continental Christian democrats were unable to attend due to Italian presidential elections and a concurrent meeting of the Mouvement Républicain Populaire (MRP) in Toulouse. The Labour Party executive committee discouraged party members from traveling to the congress and succeeded in dissuading most prominent continental socialists, including Blum, from participating as well. It had justifiable grounds for suspicion, as the umbrella organization coordinating the event, the Joint International Committee of the Movements for European Unity, was under the chairmanship of Churchill’s son-in-law Duncan Sandys. Yet Labour’s obstructionism only strengthened the hand of free-market forces in the European unity movements. This was evident to the Catholic federalist Alexandre Marc, who after the congress took to the pages of Servir to lament how free-market conservatives had hijacked the cause. Most journalists covering the proceedings at The Hague had missed the real story.
I speak of the battle between proponents of a new social order against the more or less camouflaged followers of an unrepentant conservatism. Inside the economic commission, as with the congress as a whole, the so-called liberals formed a compact majority. Some served interests best left concealed; others were sincerely attached to ideas which, it could be said charitably, belong to a past era. This “liberal” barrage, fueled by the errors and failures of statist central planning, appeared already before the start of the congress to offer insurmountable resistance to those forces representing the aspirations and needs of our time. Forces dangerously weakened, it must be said, by the irrational tactics of the Labour leadership as well as the ensuing hesitations of continental socialists and trade unionists.62
For Marc, the fears of the British Left had become a self-fulfilling prophecy.
Churchill set the tone for the congress when he announced in his opening address, “President Roosevelt spoke of the Four Freedoms, but the one that matters most today is Freedom from Fear.”63 Two days before, Attlee had declared in the House of Commons that “freedom from fear was as necessary as from want.”64 Churchill, by elevating freedom from fear over freedom from want, implicitly privileged the defense of civil and political rights over economic and social rights. The Joint International Committee 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 (p.230) for the maintenance of democracy.”65 No mention was made of the social protections enshrined in constitutions and party programs across Europe, including the Conservative Party’s Industrial Charter, as well as in the Atlantic Charter and UN Charter.
The Congress of Europe as a transnational political space freed Churchill from the political constraints under which he operated at home and provided him with an opportunity to give free rein to his free-market impulses. Gone were the days when a young populist Churchill had been at the forefront of Edwardian social reforms and liberally dispensed with the phrase “social justice.” After crossing the floor in 1904, thereby abandoning the Conservative Party of his father for the Liberal Party, Churchill fulminated against the church and moneyed interests with the zeal of the convert. His orations at that time were veritably republican in their veneration for the principle of popular sovereignty. “There is only one place to which a democrat can turn with any comfort and confidence, and that is to the people, to the mass of the electors,” Churchill told a Manchester audience in January 1906, eliciting loud cheers. “The sledge-hammer of democracy is the only weapon which at this moment will be strong enough to smash to pieces the ever-expanding apparatus of corruption and decay.”66
Four decades later, Churchill was a markedly more conservative man in temperament and worldview. The Bolshevik Revolution had been a turning point, not only precipitating his return to the fold of the Conservative Party, but strangling whatever was left of his inner Jacobin, while giving new strength to his inner Edmund Burke. Another development from afar that troubled Churchill, though far less acutely, was Franklin Roosevelt’s New Deal, which he believed had over time become dangerously collectivist in spirit, while expanding the powers of central state authorities to the extent that they threatened individual freedoms.67 This prompted him take a new look at the merits of US constitutional doctrine in an article he wrote for the American magazine Collier’s. “The question we are discussing is whether a fixed constitution is a bulwark or a fetter,” he had stated. “From what I have written is plain that I incline to the side of those who would regard it as a bulwark, and that I rank the citizen higher than the State, and regard the State as useful only in so far as it preserves his inherent rights.”68
This did not mean Churchill was forsaking the British constitutional principle of parliamentary sovereignty. On the contrary, he was concerned at the time about the growing power of the executive at the expense of the prerogatives of the House of Commons and the judiciary.69 As he did in his Collier’s piece, Churchill stressed often in his political speeches the necessity of safeguarding the independence of the judiciary. In the context of the ongoing struggle between the Roosevelt administration and the US Supreme Court over the constitutionality of New Deal legislation, he not so subtly expressed sympathy with US conservatives who believed that the federal government was enacting measures that violated rights enumerated (p.231) in the US Constitution and threatened to quash the independence of the judicial branch of the government.70
Churchill’s oft-quoted declaration of September 3, 1939, that the Second World War was “a war, viewed in its inherent quality, to establish, on impregnable rocks, the rights of the individual” has to be placed in its proper context. Churchill’s concern here was that the raft of emergency powers bestowed upon the British executive be temporary. This was why he followed these words with the statement, “We are sure that these liberties will be in hands which will not abuse them, which will use them for no class or party interests, which will cherish and guard them, and we look forward to the day, surely and confidently we look forward to the day, when our liberties and rights will be restored to us, and when we shall be able to share them with the peoples to whom such blessings are unknown.”71 Churchill, like Maxwell Fyfe and others in the Conservative Party Tories, as well as many in the Liberal Party, was later most aggrieved that the Labour government had prolonged these emergency measures into peacetime. For him, “the rights of the individual” were at risk, not only on the continent, but also in Britain.
Despite coining the phrase “from the cradle to the grave,” Churchill at first balked at implementing the social insurance schemes proposed in the Beveridge Report.72 During the 1945 general election campaign, he took pains to make clear that he was opposed to socialism, not social reform. In his first election broadcast, he defended “British enterprise” against economic planning and regulations, accusing the Liberal Party of William Beveridge of having betrayed the classical liberal values of William Gladstone. Churchill notoriously accused the Labour Party of desiring to suppress the right of political opposition and establish a “political police” akin to “some form of Gestapo,” declaring, “There can be no doubt that Socialism is inseparably interwoven with totalitarianism and the abject worship of the state.”73 “It is not alone that property, in all its forms is struck at, but that liberty, in all its forms, is challenged by the fundamental conceptions of Socialism,” he declared.74 The outline notes for this speech had been drafted by Conservative MP Ralph Assheton, an admirer of The Road to Serfdom and proponent of the Conservative Party’s endorsement of Hayek’s neoliberal doctrine.75 In a subsequent address, Churchill cautioned that a Labour victory might result in “the denial of the rights of effectual opposition as hitherto practiced in this country” and spoke of “the freedom of the wage-earner to choose or change his employment,” a right that the Conservative Party argued was denied under Labour’s proposed economic planning measures. He accused Labour of plotting to curtail parliamentarians’ “rights of debate” so as to adopt “an Emergency Powers Bill” immediately following the election, thereby “leaving the major leaders the power to act without restraint by courts of law.”76
The address was viewed in many quarters as a reversion to irrational anti-socialist hysteria and later considered a fatal error that cost Churchill his reputation as a unifying leader above party politics. Yet, there was a political logic at work here. Churchill’s aim was not only to galvanize the traditional (p.232) Tory electorate, but also to capture what was left of the Liberal Party’s support, prevent a Labour-Liberal coalition government, and lay the groundwork for his own Conservative-Liberal coalition government if necessary. The idea was to remind Liberals that socialism was inimical to the individual’s freedom from arbitrary state power, the anti-statist philosophy that had once been the bedrock of Liberal Party doctrine. Hayek, after all, considered himself a classical liberal rather than a conservative, associating conservatism with paternalism rather than free enterprise.77
This desire to court Liberals was also almost certainly at work in his decision to be at the vanguard of the movements for European unity, which allowed him to forge an alliance with the Liberals of Federal Union and present himself as the heir to Gladestone’s internationalism. His later embrace of a European human rights treaty and human rights court also was most likely part of the broader strategy of casting himself as a true Liberal in the anti-statist sense. Though this was a tactical move, it need not be seen as a cynical one. After all, he was a former Liberal MP who had switched the Conservative Party in the wake of the Bolshevik Revolution claiming that the Liberal Party had betrayed its own ideals. There was no reason why Churchill could not pursue his self-interest and still believe, or at least convince himself that he believed, that his motives were pure.
Even after his disastrous electoral defeat, Churchill continued to insist that the mission of the Conservative Party was to “set the people free.” Above all, this meant denouncing Labour’s continuation of wartime emergency measures, the nationalization of certain industries, and strict economic controls as infringements on individual freedoms.78 At a meeting of the Conservative Party in Wolverhampton in July 1949, for example, Churchill told his audience, “The Socialist Party makes a great parade of its quarrel with the Communists, but there is no real difference between a full application of the Socialist system and Communism.”79 In an earlier draft of the speech, he was even more cutting: “Both are fatal to liberty as we have known it, both will be fatal to our prosperity and happiness and to what we have called ‘the British way of life.’ ” Another passage that Churchill subsequently removed described the British as “the inspirers and guides of European unity” before warning, “If we sink through Socialism into moral and economic decline and collapse, not only will our own sufferings be intense but we shall carry many other nations with us into chaos and Communism.” The original text concluded with a quotation from Edmund Burke’s Reflections on the Revolution in France: “People will not look forward to posterity, who never look backward to their ancestors.”80
Anti-statist conservative views could be found in a more muted fashion in Churchill’s speeches on foreign affairs. A hierarchy of rights was implicit in his March 1946 speech at Fulton, where he called on Britain and the United States to champion a long list of civil and political rights common to their constitutional traditions while making no mention of the social (p.233) provisions earlier agreed upon in the Atlantic Charter. Churchill’s statement that “courts of justice, independent of the executive, unbiased by any party, should administer laws which have received the broad assent of large majorities or are consecrated by time and custom” could be interpreted as a tacit endorsement of the conservative role that courts had traditionally played in quashing left-wing reforms.81
Churchill had not used the words “human rights” at Fulton, nor did he at the inaugural mass meeting of the United Europe Movement at the Royal Albert Hall in London in May of the following year. Before the latter occasion, he had eliminated a reference in an early draft to “those fundamental
human and personal rights” from a passage on the criteria for entry in a common European organization.82 Instead, he had favored using the phrase, “those fundamental personal rights and liberties on which our democratic European civilisation has been created.” Churchill was undoubtedly aware that “human and personal rights” could denote social rights in addition to civil liberties. Shortly before the first session of the full UN Human Rights Commission convened in January 1947, the US State Department had submitted a proposal that made recommendations for the drafting of a nonbinding declaration that would include “personal rights, such as freedom of speech, information, religion and rights of property,” as well as “social rights such as the right to employment and social security and the right to enjoy minimum standards of economic, social and cultural well-being.”83 This is just one example of how “human rights” were widely understand as comprising far more than the “personal rights” that Churchill prized so highly.
Churchill was not the only speaker at the Royal Albert Hall to articulate his vision of European unity using the language of rights. Lady Violet Bonham Carter, chair of the Liberal Party, declared at the same rally, “The establishment of a Charter of Human Rights for all its citizens should be the first condition of European unity. Without that, the pursuit of peace which is the desire of all free peoples must be vain.”84 She said nothing, however, of the contents of such a charter and how it might be implemented and enforced. The presence of such a prominent Liberal Party figure at the rally attests to the cross-party support that the United Europe Movement had achieved, though admittedly Bonham Carter was particularly close to Churchill. The executive board of the United Europe Movement comprised six Conservatives, six Labourites, and three Liberals. Other than Churchill and Bonham Carter, the speakers at the Royal Albert Hall meeting had included the Archbishop of Canterbury, Reverend J. M. Richardson of the Free Church Council, the Conservative MP Oliver Stanley, the trade unionist George Gibson, and the socialist publisher Victor Gollancz.85
This appearance of ideological diversity in the United Europe Movement belied the absence of Labour Party leadership from the Royal Albert Hall and the continuing pressure that Labour MPs felt from their own ranks not to join (p.234) the United Europe Movement. Soon after the announcement of the Congress of Europe in November 1947, British and French socialists had discussed plans for the creation of a “United Socialist States of Europe” as an alternative to the Joint International Committee’s project.86 It was out of fear of such an outcome that the United Europe Movement had taken great care to present itself as an “all-party” and neutral organization at its inception. Yet, suspicions were rife in Labour circles that the organization was nothing more than a means for the opposition to rehabilitate its image after its devastating loss in the recent general election. More troubling was the prospect that it might become a tool for protecting free enterprise by fashioning a coalition of Conservative, Liberal, and Labour MPs that would split the governing majority and undermine the Labour Party’s agenda of domestic reform.87 Gollancz and Bertrand Russell, both pro-Labour and members of the United Europe Movement’s executive council, described the organization as “[o]verwhelmingly non-Labour, and largely anti-Labour.” The former was sufficiently concerned about the Conservative Party’s use of the United Europe Movement to further its domestic political agenda that he almost left the group on several occasions.88
Both the Congress of Europe’s Political Committee and its Cultural Committee took up the question of the drafting of a European human rights charter and the creation of a European human rights court. An early draft of its Political Resolution urged European states to adopt “a Charter of the Rights of Man, since in our eyes respect for these rights is the very goal of society, without omitting the rights of workers without which the state would be resting on social injustice.”89 Yet, the final Political Resolution, while recommending the drafting of a “Charter of Human Rights” and calling for a “establishing progressively a democratic social system,” made no mention of “the rights of workers.”90 This should not be surprising in light of the relatively weak representation of trade unionists, who comprised 4.5 percent of all congress participants and only 1.5 percent of the British delegation, in contrast to that of economic elites.91 The Cultural Committee abstained from endorsing a report by Marc that advocated establishing supranational guarantees for civil, political, economic, social, and cultural rights. Instead, it voted to give Maxwell Fyfe responsibility for authoring the human rights provisions of the Cultural Resolution, which specified only “freedom of thought and expression” as one of the “fundamental rights of man.”92
In the Economic Committee, battle lines were drawn between Belgian and French trade unionists, on the one hand, and free-market conservatives on the other. The trade unionists succeeded in modifying the text under discussion so that, in the words of MRP deputy André Noël, a self-described “social Christian,” the original “capitalist and liberal” preamble achieved the adherence of “progressive” forces. Free-market Europeanists rejected efforts to affirm the right of workers to take direct part in the administration of enterprises and European economic institutions, seeing this as an attempt to impose socialism on all European countries. They accepted the necessity of a degree of economic planning but (p.235) not dirigisme, as the French model of highly centralized state direction of the economy was known. On the last day of the congress, the trade unionists, despite being greatly outnumbered, threatened to scuttle the final resolutions altogether, forcing Churchill to make an unexpected and dramatic entrance to appeal for unity. Jean Drapier, chief of staff of the Belgian prime minister Paul-Henri Spaak, a socialist, sought to reassure trade unionists that the congress aimed at “progressively realizing social democracy.” “You must know,” Drapier told them, “that the Europe we wish to create together is not the narrow, conservative, fusty one that you fear.”93 The “progressive” language of the resulting Economic and Social Resolution was, in fact, more social Christian than socialist, its preamble noting, “The exigencies of modern economic development must be reconciled with the integrity of the human personality.”94
The Congress of Europe afforded Maxwell Fyfe the opportunity to transpose his neoliberal politics to a European key. The language he employed to argue for the establishment of a European human rights court closely mirrored the rhetoric he used to denounce the “totalitarian” practices of the British government at home. He explained to the Cultural Committee how he had performed his “duty” at the Nuremberg trials before stating, “I need not assure this audience that the danger to human rights is almost never of a sudden onset. It comes gradually with people failing to realize how these rights disappeared and with a gradually forming film on the eyes of the mind and a hardening of its arteries.”95 This echoed statements that Maxwell Fyfe had made at a meeting at Stockport Town Hall in October 1947, in which he had prefaced his attack on the “squalid pseudo-paradise of Socialism” that was leading to the onset of totalitarianism in Britain with the words, “It has been my duty to assist at the inquest on Nazism and for that purpose to examine as closely as any living man the onset of totalitarianism in a great country. One of things you must notice, as I noticed, is that the onset comes with a growing contempt for free discussion and a certain hardening of the walls of the individual mind.”96 At a Conservative Party rally in Kensington Town Hall several days after the close of the Congress of Europe, Maxwell Fyfe would declare,
I have studied the coming of totalitarianism on a great country. It does not come in a day or a night–but slowly. Then the pace quickens and the slope, from being gentle, becomes steep. In this country today a young man or woman cannot choose the occupation to which they will devote their lives; we have the smallest newspapers of any civilised country; snoopers can enter our homes. If the older people here could turn back the clock and put this to their parents who followed Disraeli or Gladstone, they would never believe that such things could happen in England at peace. All over Europe, Socialism is proving no defence against Communism’s attack on the triple European heritage of Christianity, mental freedom and even-handed justice.97
(p.236) While the beginning of this passage echoed Maxwell Fyfe’s words at The Hague, the coda conflated the violation of British liberties with the communist subversion of a common Christian European civilization.
For Maxwell Fyfe, international human rights standards were as much about shielding the British from the allegedly abusive practices of their own government as about protecting people in foreign lands. He had already been one of the first MPs to draw on the work of the UN Human Rights Commission during parliamentary debates on domestic matters. In a speech to the House of Commons in December 1947, while speaking out against the “Registration for Employment Order,” a planning measure that extended wartime emergency regulations, Maxwell Fyfe drew attention to the language on compulsory labor in the British government draft recently submitted to the UN Human Rights Commission.98 Despite the nonbinding character of the Universal Declaration, Tory and Liberal MPs 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.99 Maxwell Fyfe continued to do so even while intergovernmental negotiations over the ECHR were underway, claiming on the floor of the House of Commons in June 1950 that a proposed surtax imposed a retroactive penalty in contravention of the Universal Declaration.100 For many on the Left, it was becoming apparent that Maxwell Fyfe conceived of his transnational human rights advocacy as an extension of his domestic campaign against what he regarded as the human rights abuses of the Attlee government.
The Socialists Strike Back
After the conclusion of the Congress of Europe, the Joint International Committee reconstituted itself as the European Movement and assumed responsibility for developing recommendations to governments concerning future steps toward European unification. It did so through a series of conferences, the first of which took place in Brussels in February 1949. This meeting of the European Movement’s International Council was dedicated to drafting a proposal for a binding European human rights convention and court in accordance with the resolutions of the Congress of Europe. Its objective was not realized until July 1949, when the European Movement officially submitted its Draft Convention to the Council of Europe’s Committee of Ministers for consideration by the Council of Europe’s Consultative Assembly. The Draft Convention was developed entirely independently of any state actors. Without this document, it is unlikely that the Council of Europe would have taken the subject of international human rights law into consideration.
The principal source of contention during the debates over the European Movement Draft Convention was over whether it would guarantee the entirety (p.237) of the rights enumerated in the Universal Declaration—including economic and social rights—or a more limited set. In a letter sent to Maxwell Fyfe in December 1948, Drapier, the Belgian socialist, adopted the former position.101 Maxwell Fyfe responded that he and his colleagues in Britain were of the opinion that a European human rights treaty should not be modeled on the Universal Declaration since the UN text was “not really drafted as a document capable of judicial interpretation and enforcement.” A “draft Charter of Human Rights,” he informed Drapier, should comprise, first, “a statement in concise form of the fundamental personal rights and the right of free political elections, based mainly upon the Universal Declaration of Human Rights”; second, “implementation measures,” which entailed the incorporation of these rights into “municipal law,” the establishment of an international commission to which “individuals and groups” would have direct access, and the establishment of a “European court of Human Rights” that would offer “advisory opinions” if the commission requested it do so.102
Maxwell Fyfe was very clear that he intended the charter to grant “municipal courts” faculties of judicial review that went far beyond those of any British court.
Primarily, enforcement would be by the municipal courts of individual States. To this end the Charter would contain an undertaking by each State to adopt as part of its municipal law the fundamental rights set out in the Charter, and to give jurisdiction to its municipal courts to adjudicate upon the compatibility of legislative administrative or other acts with these fundamental rights.103
In other words, as far as the United Kingdom was concerned, Maxwell Fyfe was implicitly arguing in favor of overturning long-established legal doctrine. This was a radical challenge to the prevailing British understanding of parliamentary sovereignty, though Maxwell Fyfe would not have articulated it as such.
From available sources, it is difficult to determine with absolute certainty the precise contribution of all the individuals involved in shaping the various European Movement drafts that emerged in the following months.104 This is particularly true of January and February 1949, when the chain of events appears to be as follows: As Drapier was perpetually consumed with his official duties in Brussels, Sandys tasked Maxwell Fyfe with overseeing the drawing up of an English-language document in consultation with a British Committee of Jurists. This group nominally included US-born A. L. Goodhart of Oxford University and the Galician-born Hersch Lauterpacht of Cambridge University, though Lauterpacht claimed to have never been invited to join. In mid-January, the European Movement secretariat arranged for the British barrister John Harcourt Barrington, who (p.238) had served alongside Maxwell Fyfe at Nuremberg, to draw up a first draft along the lines that Maxwell Fyfe had proposed. This was then reviewed and edited, likely by Maxwell Fyfe. What became known as the “British draft” was subsequently discussed at a meeting of the French Committee of Jurists attended by Charles Chaumont, René Cassin, Léon Juillot de la Morandière, and Georges Scelle. Finally, Chaumont and Harcourt Barrington agreed on a joint French-language draft that the former relayed to the European Movement executive committee, which after some modifications relayed it to the International Council for consideration at its gathering in Brussels.105
For the original British draft, Harcourt Barrington drew up a list of “personal rights” that to a large extent mirrored the types of rights that would subsequently be codified in the final text of the European Convention on Human Rights:
1. Security of life and limb.
2. Freedom from arbitrary arrest, detention and exile.
3. Freedom from slavery and servitude and from compulsory labour of a discriminatory kind.
4. Freedom of religious belief, practice and teaching.
5. Freedom of speech and of expression of opinion generally.
6. Freedom of association and assembly.
7. Freedom from arbitrary interference with the family.
8. The sanctity of the home.
9. Equality before the law.
10. Freedom from discrimination on account of religion, race, national origin or political or other opinion.
11. The retention of his nationality until the acquisition of another nationality.
12. Freedom from arbitrary deprivation of property.
13. Freedom of petition in respect of any infringement of the Rights guaranteed by the Court occurring within the territory of any State adhering to the Convention.106
Maxwell Fyfe’s only substantive modification was to delete a final clause on “asylum for political offenses and from persecution.” Harcourt Barrington had modeled the draft on Lauterpacht’s text. Yet, whereas Lauterpacht had omitted property rights and included social rights, the reverse was true here. As for the document that the British government had submitted to the UN Human Rights Commission, this had guaranteed only the first six of the above rights, in addition to including an anti-discrimination provision more expansive than the one here.107
Despite the protestations of Morandière, no social rights were to be found in the subsequent “French draft,” which deferred to the British draft when enumerating the rights to be protected therein. In addition to guaranteeing (p.239) the right to choose freely one’s government and the right to form a political opposition, this document protected a number of “personal rights,” which included property rights while omitting the economic, social, and cultural rights enumerated in Articles 22 to 27 of the Universal Declaration. Though invoking the Universal Declaration in its preamble, it did not use the language of the Universal Declaration, deviating from the UN text in prohibiting “compulsory labour” and enshrining “freedom of petition.”108 The European Movement text did not adhere to the social democratic vision of the Universal Declaration, instead reverting to a classical nineteenth-century liberal understanding of fundamental rights. This was not just a question of whether some rights were more or less justiciable than others. An attached French-language memorandum stated that the number of rights had been limited in order “to avoid all controversy” and that “this document specifies in a concise form all the rights that are accepted as truly fundamental.”109
The original British draft of the memorandum more explicitly deprecated social democratic conceptions of human rights, arguing that “so-called economic and social rights” were “probably not truly fundamental.”110 It also made clear that some of its provisions were radically at odds with the existing British constitution.
Some States may find the adoption of Articles 1 and 2 (the fundamental personal rights) into their municipal laws a matter for hesitation. Indeed it may be the crux of the whole Convention. It undoubtedly places a restriction on the powers of a State’s legislature. This is of course not a novel feature, for every international treaty does the same. But it goes further than that, in that it enables State legislation to be questioned in the courts of that State. This is a familiar conception in the case of States with written constitutions, but it is wholly unfamiliar in Great Britain except with respect to subordinate legislation. Nevertheless, it is plain that if the Convention on Human Rights is not to lose the greater part of its efficacy, every State adhering to it must be prepared to face squarely the necessity of adopting the fundamental personal rights into its municipal law and undertaking not to override them.111
These words were effaced, however, from the final British version of the memorandum, along with the clause of the draft convention that explicitly mandated the creation in each signatory state of what was, for all intents and purposes, a US-style Supreme Court.112 Subsequently, French jurists decided to eliminate the provision on municipal law and courts altogether.
There was quickly a backlash in the European Movement’s executive committee, which, after meeting in early February, decided to scrap the Juridical Section’s list of “personal rights.” This can be explained by the presence of Drapier and Morandière, as well as the French socialist André Philip and a number of social Catholics, in the leadership of the European Union of (p.240) Federalists and Nouvelles Équipes Internationales.113 The text the executive committee submitted to the European Movement’s International Council as a basis for discussion in Brussels stipulated, “The rights of man to be protected by the present convention are those contained in the Universal Declaration of Human Rights.” The executive committee left standing the institutional structure that the French jurists had proposed, which included a “European Court of the Rights of Man,” signaling that it did not share Maxwell Fyfe’s view that the social rights enumerated in the Universal Declaration were not capable of being adjudicated by a court.114 This was not the last time that disagreement would emerge between British and continental lawyers on the matter of the justiciability of social rights.
In Brussels, the success of Sandys’s efforts to recruit more Belgian and French socialists into the European Movement, as well as the involvement of Christian democrats who had been unable to attend the Congress of Europe, posed a challenge to those who wished a European human rights treaty to have a classical liberal orientation. There, a heated exchange took place between those who supported and opposed restricting the range of rights to be safeguarded.115 Some delegates could not understand how the Juridical Section could justify the omission of economic and social rights when there existed a consensus at the United Nations that these had as much claim to being fundamental human rights as civil liberties did. This tension dramatically came to the fore when Henri Rolin, a Belgian jurist and socialist senator, described the proposed convention as “reactionary.”116
The resulting final resolution to issue from the Brussels meeting appeared to mark a victory for socialists and their allies. “The rights to be assured by the Court shall be those individual, family and social rights of an economic, political, religious or other nature in the United Nations Declaration of Human Rights which it is necessary and practical to protect by juridical process,” it stated.117 It also recommended that “a permanent legal section” of the European Movement “prepare in co-operation with the I.L.O. [International Labour Organization] and with the economic section of the European Movement appropriate legislation dealing with social and economic rights.”118 “We have every reason to be satisfied with the decisions and the texts voted in Brussels,” Philip announced in Le Populaire, adding, “The European Movement, started by influential personalities and intellectual elites, has now taken shape within economic and social reality.”119
Yet the socialists in Brussels had agreed to two critical concessions. The first was to append the phrase “which it is necessary and practical to protect by juridical process” to the description of the kind of rights to be protected by a supranational court. The second was to attach Maxwell Fyfe’s list of personal rights to their report “as a basis for consideration” for the future work of the European Movement’s Juridical Section, which would “draw up a list of (p.241) those human rights which shall be guaranteed by the European Court, having regard to the list appended hereto.”
Though the French Christian democrat Pierre-Henri Teitgen was installed as head of the Juridical Section responsible for finalizing the European Movement Draft Convention, it was Maxwell Fyfe who did the lion’s share of the drafting itself. The document that the European Movement ultimately submitted to the Council of Europe’s Committee of Ministers was based on a text that Maxwell Fyfe described to Georges Rebattet, its deputy secretary-general, as “my own preliminary draft, which in my view embodies the provisions demanded by the International Council of the Movement in Brussels.”120 In subsequent correspondence, this became known as the “revised text.”
Though Maxwell Fyfe had received assistance from Harcourt Barrington in preparing documents back in January, this does not appear to have been the case on this subsequent occasion. On May 26, he sent his preliminary draft to Fernand Dehousse, the other rapporteur in the Juridical Section, with the expectation that the Belgian jurist would make emendations.121 Dehousse, however, was preoccupied with the Belgian general election scheduled a month hence. Though promising Maxwell Fyfe that he would respond in due course, there is no record of his ever having done so.122 Sandys wrote to Maxwell Fyfe on June 11, “I showed the revised draft Convention to Teitgen yesterday. Although he told me that he had put in a good deal of work drafting a document of his own which attempted to define the Human Rights in question, he readily agreed to adopt your paper and thought he would have no difficulty in obtaining the support of Dehousse at the meeting next Thursday.” Mindful of the discontent within the European unity movements, he added that Harcourt Barrington would be “coming to argue the case should there by any opposition.”123
Contrary to what socialists had been led to believe in Brussels, the Draft Convention did not incorporate a single of the economic and social rights provisions of the Universal Declaration of Human Rights. Rather, the European Movement text adopted verbatim the entirety of Maxwell Fyfe’s proposed personal rights—with a couple modifications made at the behest of Teitgen (see Chapter 7). Only the Dutch offered any serious resistance, objecting that the use of the phrase “personal rights” excluded “collective rights” and proposing the addition of a number of social rights found in the Universal Declaration: “The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment and to a standard of living adequate for the health and well-being of himself and his family.”124 Several of the liberals on the Juridical Section, among them Courtin, were in favor of partially accommodating this request through inserting a vague statement of principle affirming “the safeguard of conditions of life and work and those of the family.” Yet, Teitgen personally intervened to veto (p.242) the inclusion of this clause, explaining that it was “inapplicable in the present circumstances” and “the resulting guarantee is theoretical and illusory.”125
The European Movement text thereby guaranteed a far narrower range of rights than that found in the Universal Declaration. The exclusion of the broad array of economic and social rights found in the UN document ignored not only socialist demands but also the positions of conservatives who supported a more interventionist role for the state. Its first article listed a number of classical liberal freedoms that “every State a party to this Convention shall guarantee to all persons within its territory,” while the second enumerated “the fundamental principles of political democracy … in particular, within its metropolitan territory.” The separation of democratic rights from what an earlier version had described as personal rights not only reflected the desire of the text’s framers to limit its repercussions on European colonial rule but was also a reminder that liberalism and democracy had, for much of their history, not been indivisible. On the contrary, nineteenth-century liberals were among the most steadfast opponents of democratization, holding that individuals in certain social categories were not able or ready to participate in parliamentary elections. Universal suffrage, many believed, would engender mob rule and undermine the rule of law. They imagined this would put at risk fundamental liberties, above all property rights, which depended on restraints on the use of state power such as an independent judiciary. Just as belief in constitutional government was not the same as support for democracy, a belief in human rights was not the same as support for democratic representation for all.126
In other words, championing political rights such as freedom of expression did not entail advocating that all citizens have the right to participate in “free elections by universal suffrage and secret ballot, so that government action and legislation may accord with the expressed will of the people,” in the words of the European Movement Draft Convention. Though Churchill had even at the outset of the twentieth century been comfortable lauding “democracy,” just as his father had done, this had not been necessarily true of other Liberal and Conservative MPs. In the postwar era, many conservatives continued to insist that individual freedom from the state was potentially under threat in a government based on majority rule. Yet, it was not unusual for conservatives to describe themselves as “social democrats,” by which they meant that they were neither socialists bent on eradicating the free market nor unreformed laissez-faire liberals. By now, democracy was widely associated with economic and social equality as well as with equal representation in legislative assemblies. Communist states described themselves as “people’s democracies” or “true democracies” in contrast to the sham democracies of the West. At the Congress of Europe, the European unity movements had sought to ensure that the word “democracy” would henceforth be identified with classical liberal principles. As the Political Resolution stipulated, “[I]n no circumstances shall a State be entitled to be (p.243) called a democracy unless it does, in fact as well as in law, guarantee to its citizens liberty of thought, assembly and expression, as well as the right to form a political opposition.”127
Among the democratic rights safeguarded in the European Movement Draft Convention were “the right of political criticism and the right to organize a political opposition.” Though clearly its framers had communism and fascism in mind, there may have been domestic considerations at work as well. Maxwell Fyfe, like other Conservative MPs, had recently accused Labour of resorting to antidemocratic methods to curtail debate over nationalization bills in Parliament. He claimed to have heard reports that the Attlee government was planning on suspending parliamentary procedure through its use of a so-called guillotine maneuver. As he wrote in the May 30, 1949, edition of The Star:
Incomplete debate is little better than no debate at all. The history of strangulation of free debate is well known. The ill-starred Reichstag was a forum of free discussion until Hitler became Chancellor. It may be felt that this over-dramatises the issue. It may seem far-fetched to say that the use of the guillotine is a step towards totalitarianism. …
The very foundation of our Parliamentary system is a Government to rule, with an Opposition to restrain the extremists. Without an Opposition our Parliament becomes a dictatorship—and slowly but surely the guillotine is destroying the function of the Opposition. Just as in the French Revolution the guillotine meant death to aristocracy, so the guillotine may mean death to democracy.128
Maxwell Fyfe wrote these words only days after having completed revisions on his draft for the European Movement’s Juridical Section. It is quite possible that he believed that a European human rights treaty would safeguard the rights of opposition parties in Britain as well as on the continent. It appears to have been Maxwell Fyfe himself who in February had added a reference to “political opposition” in the original British draft drawn up by Harcourt Barrington.129
At the very least, such domestic concerns made Maxwell Fyfe more amenable to the ceding of British parliamentary sovereignty to domestic courts and national sovereignty to a supranational court. Parliamentary criticism, not the judiciary, was conventionally understood as the ultimate guarantor of fundamental freedoms in Britain. If that right were to be lost, there would no longer be a domestic failsafe against arbitrary power. He was far from the only Conservative MP with such concerns. Quintin Hogg, for example, in a House of Commons debate on October 14, 1946, on a “fair wages clause in government contracts,” spoke of “democracy as meaning not merely majority tyranny or rule.” “The important factor to remember,” he stated, “is that, whoever may be the sovereign in a country, be it a man, be it a class, be it a corporation of men, be it a vast majority of anonymous men, they disregard the natural rights of man at their peril.”130
(p.244) The domestic implications of the emergence of international human rights law did not go unnoticed among international lawyers in Britain. Richard O’Sullivan, speaking to the Grotius Society in 1948, observed, “The new concern for individual and human rights is the response of international law to the failure of our municipal systems of law, in theory or in practice, to afford adequate protection to what are now called ‘Human Rights and Fundamental Freedoms.’ ” O’Sullivan was unabashedly nostalgic for the medieval Christian legal order. Taking aim at the current prevailing conception of the British constitution, he castigated “the school of thought in England which, exalting the omnipotence of Parliament, denies the existence of a system of natural law.” Citing the work of French Catholic philosopher Jacques Maritain, O’Sullivan denounced legal positivists for “secularizing” international law and disregarding the teachings of scholastics such as Thomas Aquinas, who “recognized the existence of the inborn and indestructible rights of the individual.” While praising much of the content of the British government draft, he took issue with the absence of property rights, remarking, “It is not surprising in the case of a Bill prepared at the instance of a Socialist government for submission by a Socialist minister to the Commission on Human Rights of the Economic and Social Council.”131
At a Grotius Society meeting the following year, Lauterpacht pointed out that the European Movement Draft Convention invested supranational institutions with “the authority to review legislative acts of sovereign parliaments,” raising the possibility of legal challenges to the Control of Engagements Order restricting an individual’s free choice of employment and to “interference with the rights of property, such as capital levies.”132 Maxwell Fyfe, having already revealed his willingness to invoke UN human rights texts in opposition to economic planning, would be compelled to deny in front of both the House of Commons and the Council of Europe’s Consultative Assembly that the Conservative Party intended to use a European human rights treaty to challenge the Attlee government’s policies on labor direction, nationalization, and taxation.133 He had, in fact, anticipated such criticism from the outset. Subterfuge rather than direct confrontation was now in order.
A Victory for Conservatives at the Council of Europe
The inaugural session of the Council of Europe’s Consultative Assembly in the summer of 1949 was marked by a general comity among the delegates gathered there, which was unsurprising given that the majority were affiliated with the European Movement. The practice of continental parliaments voting as a whole on the composition of national delegations, meant to exclude the Far Left and Far Right, in effect permitted members of the European Movement from different parties to vote for one another. The divisions that (p.245) emerged over the course of several weeks of meetings tended to pit federalists against functionalists rather than Left against Right. One notable exception was the polarization that emerged in the debates over the adoption of a resolution on human rights. Another was the constant infighting within the British delegation, whose representatives had been nominated by party executive committees so as to ensure proportional representation. In comparison, continental parliamentarians were more used to working together in multiparty coalitions and bucking their leaderships so as to form ad hoc cross-party alliances on particular issues.
The British behaved as if they were still in Westminster, where party discipline was typically stronger than across the Channel. They argued over the pettiest matters, as when the Labour minister Herbert Morrison publicly confronted Churchill outside the assembly hall to warn him that he would cut the modest stipend of Churchill’s substitute if the opposition leader remained in Strasbourg more than a couple of days after the start of the session.134 When Labour delegates nominated William Whitely, the Labour chief whip, as a candidate for vice president of the assembly, Conservative MPs sought to foil their plans by nominating Walter Layton, a Liberal peer. Churchill, seeing that Layton was wavering, allegedly took hold of him and bellowed, “If you retire now, I will never speak to you again. You will have betrayed me. You will have betrayed the whole Liberal Party.”135 Apparently the leader of the opposition was still in fighting form.
Conservatives had a stranglehold on the levers of power in the Consultative Assembly. No members of Labour or continental socialist parties were elected to any of the vice presidencies, nor were any elected to chair its six committees. Maxwell Fyfe was installed as chair of the Committee on Legal and Administrative Questions. Italian diplomats would note after the conclusion of the first session that, in spite of a considerable contingent of Labour and continental socialist delegates, “the parties of the Center Right prevailed consistently in the Assembly and influenced the most important decisions taken therein.”136
Unsurprisingly, then, Labour delegates opposed moves to strengthen the powers of the Consultative Assembly. A true European parliament in the hands of a center-right majority might, they feared, succeed in reversing all that the Attlee government had achieved in the past four years.137 This obstructionism only worked to the advantage of British Conservatives, who parlayed their own nebulous statements in support of European unity into a makeshift alliance with the continental Left. As Franc-Tireur, a French journal born of the Resistance movement of the same name, explained:
A new battle for Europe has begun. … An extraordinary thing, everything is occurring as if, in this debate, the conservatives were the “European revolutionaries” while the labourites seem to figure as national (p.246) conservatives. But this is only an appearance. While the conservatives often have the support of the French and Belgian Socialists against the British Labourites and the Scandinavians, the Churchill-Reynaud operation seeks first to place “European unity” against the Attlee-Cripps experience.138
The French parliamentarian Paul Reynaud was, like Churchill, a former prime minister and staunch free-market conservative who had taken on a leading role in the European unity movements after finding himself in the political opposition in the aftermath of the Second World War. Labour delegate Maurice Edelman described the conservative “good Europeans” as “mystics.” “Befuddled by the steam of their own rhetoric, they see in European unity no more than a reaction of conservative forces against Social Democracy,” he wrote in the New Statesman, a left-wing British review. “With tears in their eyes they say ‘Europe’; and in their hearts is a lament for privilege. They speak of freedom, and mean laissez-faire; of stability, and mean Conservatism.”139
Some Christian democrats expressed similar sentiments. Étienne Borne, a deputy on the left wing of the MRP, observed dolefully in L’Aube that Churchill had begun to lay the groundwork for a “liberal Europe” that “has the wind at its back.” “Europe is divided internally between two tendencies, one liberal, the other socialist,” he continued. “Just after the Allied victory, a socialist Europe appeared the most probable. … A democratic and socialist faith appeared capable of giving to Europe those common political values without which it would be a rather miserable geographical expression. Times have now changed.”140 For Borne, there was still hope for the European unity project if “Strasbourg Man” was born from a cultural and political conception of Europe rather than an economic one. Niall Macpherson expressed the newly confident conservative spirit when he declared in the pages of the Daily Telegraph that a “United Socialist States of Europe” was a “Marxist mirage, for at present the political swing is away from Socialism throughout Western Europe.”141
British and continental socialists put aside their differences during the last two days of the session, when they came together to block the insertion of property and education rights guarantees in a Consultative Assembly resolution on human rights. Both agreed that their political opponents back home might invoke these provisions to challenge their positions on the state ownership of industry and state financing of Catholic schools. Yet conservatives outmaneuvered this temporarily united Left on the question of whether economic and social rights would be guaranteed in a future European human rights convention. The Council of Europe’s Committee of Ministers had suggested, at Bevin’s insistence, that “due consideration should be also given to the question of the ‘definition of human rights.’ ”142
Even so, the European Movement Draft Convention remained the basis of the human rights work of the Committee on Legal and Administrative Questions, (p.247) chaired by Maxwell Fyfe. In the Consultative Assembly, Maxwell Fyfe, comparing the proposed European human rights court to the US Supreme Court, called for the safeguard of “basic personal rights” or “negative rights and freedoms” alone. He explicitly rejected the Universal Declaration paradigm by stating outright that the “so-called economic or social rights” contained therein would not be included in a European human rights charter. Describing “positive rights” as “too controversial,” he implicitly threatened to withhold support if they were included. His claim that the presence of these rights in a European human rights charter would “jeopardize” its “acceptance” signaled that British Conservatives would not recognize the legitimacy of European human rights law enshrining welfarist principles.143
British Labour delegates accused the Legal Committee of having drafted a European human rights charter that would act as a vehicle to turn back the clock on domestic social reforms. Arwyn Ungoed-Thomas, a Welsh Labour MP, described the convention proposed in the Legal Committee’s report as “anti-democratic and reactionary,” using the example of how the US Supreme Court had acted to overturn New Deal legislation on what he considered the flimsiest of pretexts.144 Continental socialists such as Rolin were also opposed to the creation of a European high court, preferring a non-judicial means of safeguarding human rights. The most vociferous opposition to the property rights article came from Will Nally, Labour MP for Bilston. A European human rights charter, according to Nally, should “pay more respect to the liberties of the little people who do not own property” rather than “defend a property structure in which a tiny handful of people own the means by which millions of others live.”145 According to the Daily Herald, Nally saw through the well-spoken arguments of the proponents of a human rights court and “blew the smokescreens away.”146
Delegates on the Left succeeded in stripping the property rights article from the proposed European human rights convention. They were unsuccessful, however, in their efforts to include the social rights provisions enumerated in the Universal Declaration.147 On September 8, the Consultative Assembly adopted the amended version of the Legal Committee’s report by sixty-four votes in favor, one vote against, and twenty-one abstentions.148 British Conservatives who were present at the debate voted for the resolution. Nally was the only delegate to vote “no.” The rest of the Labour delegation that was present abstained, with one exception, that being Frederick Cocks, who had not only himself called for a European human rights charter during the last war, but was known for having an idealistic temperament and bucking the leadership of his party (see Chapter 3).149 The Labour MPs who refused to endorse the Legal Committee’s report understood that “private-enterprise Tories” such as Maxwell Fyfe were engaging in a rearguard action against the Attlee government. Bevin had proved prescient in his fear that the Consultative Assembly would become “a stick with which ‘public opinion’—in other words, to a large extent, the various Oppositions—might belabour the various Governments of the day.”150
If the Left was mistrustful of the Right’s intentions, then the converse was also true. Conservatives subsequently noted in private that Labour MPs had (p.248) not voted for the Consultative Assembly’s human rights resolution because they “considered its adoption an impediment to their doctrinaire plans for an authoritarian state.”151 Back in Britain, Maxwell Fyfe continued to make public statements that lent credence to the Left’s fears. On October 13, in a speech at Blackburn, he prefaced an attack on the Attlee government with virtually the same words that he had used to argue for a European human rights court at the Congress of Europe: “Probably no one in the world has studied Totalitarianism more completely that [sic] I have, and I know it does not come in a night, or a week, or a month. It gradually eats into the minds and souls of people until the arteries of the mind harden and the sight glazes, and they do not notice when freedom disappears.” He urged British Conservatives “to have their defenses ready. They had to show, as they could, that free enterprise would produce greater material benefits, but in addition they had to have the conquering faith before which Communism or any other form of Totalitarianism would wilt, a faith in Christian moral standards, in freedom of the mind, in even-handed justice between man and State, and between the humblest citizen and the most powerful minister or official.”152 For Maxwell Fyfe, as for other conservative Europeanists, the cultural and political dimensions of human rights were inseparable, as the struggle to defend the individual from “totalitarian” forms of state power required subscribing to the system of Christian ethics he regarded as the foundation stone of European civilization.
When the Committee of Ministers gathered again in Paris following the conclusion of the Consultative Assembly’s first session, Bevin insisted that Maxwell Fyfe not be consulted in the preparation of the final text of the ECHR. Consequently, the committee entrusted only government-appointed legal experts and senior diplomatic officials to reformulate the Consultative Assembly’s recommendations in terms that would be acceptable to Council of Europe member states.153 These negotiations took place between February and June 1950, laying the groundwork for a debate over the human rights question in a meeting of the Committee of Ministers in August 1950. The Committee of Experts responsible for elaborating a draft treaty claimed to have “scrupulously adhered to the text of the Universal Declaration.”154 Yet, as with the Consultative Assembly's human rights resolution, the Committee of Experts’s draft safeguarded a restricted set of rights that was derivative of the list of “personal rights” found in the draft that Maxwell Fyfe had submitted for the European Movement’s consideration in February 1949.
For the Attlee government, these negotiations were a distraction from the task of building socialism at home—or worse, a Trojan horse for conservative assaults on its economic and social agenda. In a cabinet meeting of August 1, 1950, Stafford Cripps, Chancellor of the Exchequer, declared that “a Government committed to the policy of a planned economy could not ratify the [Council of Europe’s] Covenant on Human Rights. He drew attention to various Articles in the Convention, e.g., on powers of entry into private premises, (p.249) which were inconsistent with the powers of economic control which were essential to the operation of a planned economy. … 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.”155 Morrison added, “Tories would enjoy supporting something embarrassing to ‘planning’ Governments.”156 “This Convention would enable British Conservatives to object at this court to a planning regulation,” concurred Cripps.157
Consequently, the cabinet instructed the Foreign Office that “the main line of argument must therefore be that Governments needed more time to consider the repercussions of the draft Convention on their domestic law, and reference could no doubt be made to current economic developments in Europe which would have to be borne in mind in a re-examination of the draft.”158 A contentious exchange of internal memoranda ensued. Bevin became exasperated, noting, “I cannot see the grounds on which Article 8 [guaranteeing privacy rights] is objectionable. It appears to have nothing to do with economic planning, and I should only look foolish if I tried to oppose it on these grounds.”159 While Treasury officials under Cripps endorsed Bevin’s assessment, the Ministry of Health under left-wing firebrand Aneurin Bevan concurred with the cabinet majority.160 Lord Chancellor William Jowitt wrote to Hugh Dalton, the former Chancellor of the Exchequer, “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.”161
At first glance, Cripps was an unexpected antagonist. In the fall of 1940, he had proposed to the Foreign Office a scheme for “a European Union based on the main principles of individual freedom, equal justice for all, and toleration of minorities within each of its states.”162 Seven years later, Cripps, a devout man who was sponsor of the Parliamentary Socialist Christian Group, told the organizers of the Congress of Europe that he was willing to go to The Hague to “speak on a subject of a cultural or spiritual nature” as part of “a major speech on moral issues, the solution of which would bring the basis for European Unity.” Pressure from the Labour Party executive committee soon led him to retract his offer.163
On the other hand, Cripps was known for his animus against Churchill, which had resulted in epic clashes of personality and policy between the two men during the war.164 From Churchill’s perspective, the Chancellor of the Exchequer exemplified Labour’s disregard for democratic freedoms. In the 1930s, Cripps had recommended that his party upon achieving a majority in the House of Commons be prepared to grant Labour ministers emergency measures in case capitalists attempted to stymie their nationalization and planning measures.165 “Our constitution is not based upon any fixed or immutable laws nor do we require any special procedure to change it,” he wrote in 1933. “This so-called flexibility is our greatest asset, it should enable the constitution to adapt itself momentarily to the desires and wishes of the (p.250) people.”166 As late as 1948, Cripps was announcing to the House of Commons that “if we cannot get nationalisation of steel by legal means, we must resort to violent methods.”167 It was these kinds of statements that Maxwell Fyfe had seized upon to denounce Cripps as a crypto-communist with authoritarian pretensions.168
In March 1950, the government-appointed experts negotiating the final text of the ECHR had issued a statement explaining that they had been faithful to the recommendations of the Consultative Assembly and sought to steer clear of domestic political controversies, but added, “Most of the Members of the Committee, however, were of the opinion a European Convention on Human Rights should include the safeguarding of the right to own property and that of parents to choose the kind of education that shall be given to their children.”169 The preference of most governments for the codification of these more controversial rights might be explained by behind-the-scenes lobbying efforts. In France, for example, the National Federation of Agricultural Property (Fédération Nationale de la Propriété Agricole) and General Confederation of Agriculture (Confédération Générale de l’Agriculture), joined by their supporters in the National Assembly, wrote to Schuman to request that property rights be safeguarded in any human rights treaty to issue from the Council of Europe, receiving a placatory albeit noncommittal reply from the French foreign ministry.170
When the Consultative Assembly met for a second time in August 1950, Tory delegates allied with their conservative continental counterparts to push through a property rights amendment that would likely have met with insurmountable opposition in their respective national parliaments. In the Consultative Assembly’s Legal Committee, the delegates Paul Bastid, Georges Pernot, and Seán MacEntee warned that a property rights guarantee “represented the ‘ne plus ultra’ of compromise for conservative members of the Assembly. Were it not accepted, certain Members of the Committee said they would oppose the whole Convention as having been ‘watered down’ to such an extent that it had become useless.”171 Such threats, combined with a slight softening of the language of the provision, weakened the resolve of delegates on the Left. Many of their members were undoubtedly hesitant to anger their conservative partners in governing coalitions back home and fearful of being tarred as closet communists. In any case, they lacked the numbers in a Consultative Assembly that skewed increasingly to the political right. The Attlee government showed stiffer resolve on the property rights question, instructing the British representative to the Committee of Experts to “oppose it on account of its dangerously wide and unforeseeable implications.”172 It was only after the Conservative Party won the October 1951 general election, following upon the electoral victory of the French Center Right in the June 1951 legislative election across the Channel, that the Council of Europe’s Committee of Ministers adopted an additional (p.251) protocol guaranteeing property rights, education rights, and the right to free elections.
Back in Britain, the Labour Party shied away from mobilizing the language of human rights at the very moment when Liberals and Conservatives were inscribing it into their political programs. Until 1950, no major British political party had used the phrase “human rights” in its general election manifestos. Conservatives preferred to appeal to “our ancient liberties,” while Labour invoked “rights” in 1945 only to suggest how they served to preserve the inequities of free market capitalism: “the effective choice of the people in this Election will be between the Conservative Party, standing for the protection of the rights of private economic interest, and the Labour Party, allied with the great Trade Union and co-operative movements, standing for the wise organisation and use of the economic assets of the nation for the public good.”173 During the 1950 general election, the Liberal Party explicitly committed itself to implementing the Universal Declaration while Conservatives declared that Germany should be admitted to the Council of Europe providing it respected “the Western democratic conception of human rights.”174 Revealingly, the Conservative Research Department deliberately omitted a reference to the Universal Declaration that had been inserted in earlier drafts, despite its internal assessment that the UN text had “wide appeal.”175 The panoply of rights articulated in the Universal Declaration perhaps posed difficulties for those who believed that the defense of individual freedom from arbitrary state power should take precedence over the ideal of social citizenship.
During intergovernmental negotations, British officials inscribed into the final text of the European Convention on Human Rights numerous limitations on the exercise of the rights codified therein. As a result, the ECHR codified in international law the extraordinary powers of the postwar nation-state at the same time as it imposed unprecedented constraints on the exercise of these powers. The European Movement Draft Convention had already foreseen the need for including similar limitations the year before. It noted, among others, the need to account for “the general welfare,” but did not go as far to mention “health” and “the economic well-being of the country,” as the ECHR did.176 The ECHR thereby replicated the tension between affirmations of state power and restrictions on it that had long characterized statements of fundamental liberties, from the declarations of rights issued during the French Revolution to the UN accords that today make up the International Bill of Human Rights.
Conservative MPs argued forcefully in the House of Commons for ratification of the European Convention immediately following its signature, with Churchill agreeing in private correspondence that the Conservative Party should move for the United Kingdom to recognize the jurisdiction of the European Court of Human Rights.177 Other than squabbling with Bevin about who was responsible for politicizing and sabotaging the (p.252) Council of Europe, Churchill’s contribution was to inquire as to whether the government had any intention of agreeing to the codification of the right to free elections in a subsequent protocol. When the Consultative Assembly met again in Rome on November 18, British Labour MP Gilbert Mitchison, who had expressed concern about the domestic political uses of a property right article but also praised Maxwell Fyfe for his impartiality, voiced his unease, lamenting that the Consultative Assembly had recommended safeguarding property rights but omitted the economic and social rights found in the Universal Declaration. Mitchison asked, “Is it to be said of my country at least, and of the party to which I am proud to belong, that we attach higher importance to the right of property than to the right to employment or maintenance? The right to employment has been our ancient war-cry in our electoral battles. It is something which at long last we have brought to practical fulfillment in our own country.”178
Despite Labour’s many misgivings, Britain became the first signatory of the ECHR to ratify the accord. Though surely sensitive to pressure from the opposition, the Attlee government also wished to offer a sop to those states displeased by Britain’s hesitance to endorse more ambitious plans for economic, political, and military integration.179 It did not, however, recognize the jurisdiction of a European Court of Human Rights or the right of individuals to lodge claims regarding violations of the European Convention. Nor did it incorporate the ECHR into domestic legislation.
Churchill, once restored as prime minister in October 1951, also failed to take these steps. In a cabinet meeting on March 13, 1952, on the question of whether Britain should seek to expand the purview of the Council of Europe’s Consultative Assembly and grant it oversight over the European Communities, Churchill sided with Lord Salisbury, who, according to the minutes, argued “that he did not believe that the United Kingdom should ever commit itself to full membership of a continental bloc” for “[w]e were not a continental power, but an island power with a Colonial Empire and unique relations with the independent members of the Commonwealth.”180 Churchill agreed: “There is the Channel—can’t smudge that out. Nor the once great Empire.” Maxwell Fyfe was devastated, protesting that it was “not inconsistent with Tory tradition to play a part in guiding and forming European opinion” and that it would be a “disaster for the United Kingdom to shrink from that.”181
This had, of course, been Churchill’s stance as leader of the opposition. Why he had now changed his mind is a mystery. The most likely explanation is that his postwar Europeanism had always been very much a product of postwar domestic politics. As for the European human rights system, it turned out that Churchill and most of his ministers, like their Labour predecessors, felt that, once in power, they did not need any additional defense of human rights at home.
(p.253) The British satirist Olga Katzin, who wrote for the New Statesman under the pseudonym “Sagittarius,” had already captured this dynamic exquisitely in a poem she published in the August 1949 edition of the magazine. In that piece, entitled “The Rights of Man,” Katzin brought into relief the contradictions inherent in the British government’s stance on international human rights questions. As she touched on a great number of the political considerations—domestic, international, and imperial—that shaped British involvement in the construction of the European human rights system, the poem is reproduced here in its entirety:
- We do believe in Human Rights,
- For Greece and Anatolia,
- And for the Balkan satellites
- And China and Mongolia.
- In certain portions of the globe
- Conditions are unsavory,
- And mankind’s champions should probe
- Intolerance and slavery.
- We all believe the Rights of Man
- Should have full recognition,
- So long as sovereign States may ban
- The Human Rights Commission.
- To Europe’s Court we give sincere
- And unreserved adherence—
- But let them give no judgment here
- To curb State interference.
- We do believe in Human Rights
- For Chile and Siberia,
- But Blacks are Blacks and Whites are White
- In Kenya and Nigeria.
- Democracy’s Protectorates
- Are free from persecution,
- And seek no aid from Sister States
- To streamline evolution.
- We all believe the Rights of Man
- Should end age-old subjection,
- While barring no established plan
- For industry’s direction.
- We do not mind a public fuss
- On equal pay for labour—
- (p.254) These strictures don’t apply to us,
- But to our next-door-neighbour.
- We do believe in Human Rights,
- Like old Tom Paine and Rousseau,
- And hope in time the Muscovites
- Will be as free as Crusoe.
- All have their obligations owned,
- But with the best intention,
- We have successfully postponed
- The Human Rights Convention.182
(3.) Final Act of the Inter-American Conference on Problems of War and Peace (Mexico City: Union of American Republics, 1945).
(6.) “European Committee of Federal Union: Powers of the Federal Government, July 1943,” in Lipgens, Documents, Vol. 2, 806–9.
(7.) “Juridical Committee of the Pan-European Conference and Research Seminar for European Federation: ‘Draft Constitution of the United States of Europe’, 25 March 1944,” in Lipgens, Documents, Vol. 2, 814, 816, 818.
(8.) “Projet de déclaration des résistantes européennes,” L’Europe de demain, ed. Centre d’action pour la fédération européenne, 70–75 (Neuchâtel: Editions de la Baconnière, 1945) (http://www.cvce.eu/object-content/-/object/d68ca0ad-c24b-4906-8235-96b82814133a).
(10.) T. H. Marshall, Citizenship and Social Class, and Other Essays (Cambridge, UK: Cambridge University Press, 1950).
(11.) Eric Hobsbawm, The Age of Extremes: A History of the World, 1914–1991 (New York: Vintage, 1996), 273; Tony Judt, Postwar: A History of Europe Since 1945 (London: Pimlico, 2007), 362–63.
(13.) Roy Jenkins, Churchill: A Biography (New York: Plume, 2002), 807.
(14.) Gary Love, “The British Movement, Duncan Sandys, and the Politics of Constitutionalism in the 1930s,” Contemporary British History 23, no. 4 (December 2009): 545.
(15.) Keith Middlemas, Power, Competition and the State: Britain in Search of Balance, 1940–61, Vol. 1 (Basingstoke, Hampshire: Macmillan, 1986), 71.
(16.) Brendan Evans and Andrew Taylor, From Salisbury to Major: Continuity and Change in Conservative Politics (Manchester, UK: Manchester University Press, 1996), 67.
(17.) Helen Mercer, Constructing a Competitive Order: The Hidden History of British Anti-Trust Policies (Cambridge, UK: Cambridge University Press, 1995), 98.
(18.) “Britain ‘Crucified on Socialist Cross,’ ” Evening News, October 10, 1946.
(19.) “Conservative Leadership,” The Scotsman, October 1, 1946; “By Their Fruits,” Daily Herald, October 4, 1946.
(20.) Oldham Evening Chronicle Standard, October 4, 1946.
(21.) “By Their Fruits,” Daily Herald, October 4, 1946.
(22.) David Maxwell Fyfe, “England To-day: An Indictment,” Sunday Chronicle, October 6, 1946.
(23.) John Ramsden, The Age of Churchill and Eden, 1940–1957 (London: Longman, 1995), 188; “Steel Bill Helps Communists,” Nottingham Guardian, December 4, 1948.
(24.) David Maxwell Fyfe, “Who Wins the War of Your Mind?,” Sunday Express, October 6, 1946; “ ‘Sinister Step to Totalitarianism’: Guillotine Motion Attacked,” Birmingham Post, November 24, 1948.
(25.) David Maxwell Fyfe, “Delegated Legislation,” 1948, CAC, Kilmuir Papers, Acc 1485, box 6, file 4.
(26.) Friedrich Hayek, The Road to Serfdom: Text and Documents: The Definitive Edition, ed. Bruce Caldwell (Chicago: University of Chicago Press, 2007), 110; Collected Works, Vol. 2 [Kindle edition].
(28.) Ritchie Calder, “Peace Based on the Rights of Man,” Daily Herald, January 1, 1940; H. G. Wells, “You Are the Heirs to the Earth’s Wealth,” Daily Herald, February 12, 1940.
(29.) “Labour’s Declaration of Policy,” Daily Herald, February 9, 1940.
(30.) Richard Acland to H. G. Wells, July 5, 1940, University of Illinois Rare Book and Manuscript Library, Urbana, Wells Papers, Correspondence, box 1-A18, item 14; H. G. Wells, “H. G. Wells Explains,” Daily Herald, February 23, 1940.
(33.) René Courtin to Albert Hunold, December 2, 1948, Hoover Institution Archives (HIA), Mont Pèlerin Society Records, box 29, Folder 1.
(34.) “Joint International Committee of Movements for European Unity: Minutes of a meeting of the Cultural Sub-Committee held on Friday, 19th March 1948,” HAEU, Lipgens Papers, box 74; Georges Rebattet to René Courtin, June 25, 1949, HAEU, European Movement Papers, box 691.
(35.) The Industrial Charter: A Statement of Conservative Industrial Policy (London: Conservative and Unionist Central Office, 1947), 28–29.
(36.) John Ramsden, The Age of Churchill and Eden, 1940–1957 (London: Longman, 1995), 155; Keith Robbins, Churchill (London: Longman, 1992), 158.
(37.) Conservative Political Centre, Conservatism, 1945–1950 (London: Conservative Political Centre, 1950), 49, 64, 67–68.
(40.) Hansard, HC Deb, January 22, 1948, col. 396.
(42.) Dianne Kirby, “Divinely Sanctioned: The Anglo-American Cold War Alliance and the Defence of Western Civilization and Christianity, 1945–48,” Journal of Contemporary History 45, no. 3 (July 2000): 404.
(43.) Michael Newman, Socialism and European Unity: The Dilemma of the Left in Britain and France (London: Junction Books, 1983), 20.
(45.) R. M. Douglas, The Labour Party, Nationalism and Internationalism, 1939–1951 (London: Routledge, 2004).
(48.) Christopher Moores, “From Civil Liberties to Human Rights? British Civil Liberties Activism and Universal Human Rights,” Contemporary European History 21, no. 2 (2012): 169–92.
(50.) Bryan King, “Towards a Bill of Human Rights?,” The Economist, January 17, 1948.
(51.) Carol Anderson, Eyes off the Prize: The United Nations and the African American Struggle for Human Rights, 1944–1955 (Cambridge, UK: Cambridge University Press, 2003), 135.
(52.) Reconstruction Department of Foreign Office, “A.C.U. (46) 98,” March 25, 1946, BNA, Foreign Office Records, box FO 371/57317.
(53.) H. G. Gee to Claud Berkeley, April 2, 1946, BNA, Foreign Office Records, box FO 371/57317; Marcus Fleming to H. Gore Booth, April 9, 1946, BNA, Foreign Office Records, box FO 371/57318; “A.C.U. (46) 125,” April 17, 1946, BNA, Foreign Office Records, box FO 371/57318; Minutes by Eric Beckett, October 11, 1946, and November 29, 1946, BNA, Foreign Office Records, box FO 371/59740; Geoffrey Wilson to Eric Beckett, March 14, 1947, BNA, Foreign Office Records, box FO 371/67487; Note by C. M. LeQuesne, December 31, 1948, BNA, Foreign Office Records, box FO 371/72812.
(54.) Peter Catterall, “‘Efficiency with Freedom’? Debates about the British Constitution in the Twentieth Century,” in Reforming the Constitution: Debates in Twentieth-Century Britain, ed. Peter Catterall, Wolfram Kaiser, and Ulrike Walton-Jordan (London: Frank Cass, 2000), 5–6; Mark Evans, Constitution-Making and the Labour Party (Basingstoke, UK: Palgrave Macmillan, 2003), 162–63; Feldman, “Civil Liberties,” 403; Conor Gearty, “The United Kingdom,” in European Civil Liberties and the European Convention on Human Rights, ed. C. A. Gearty (The Hague: Martinus Nijhoff, 1997), 64.
(55.) Richard O’Sullivan, “The Concern of the International Law for the Individual,” Transactions of the Grotius Society 34 (1948): 7.
(57.) UN Doc. E/CN.4/AC.1/4.
(59.) “Europe Group of the Parliamentary Labour Party: Strategy Papers, Feb. 1948,” in Lipgens and Loth, Documents, Vol. 3, 690.
(60.) “Marshall Plan Needs Eastern Co-operation,” The Observer, February 1, 1948.
(61.) “Socialist Conference on the Marshall Plan, Selsdon Park, Surrey: Resolution, 22 March 1948,” in Lipgens and Loth, Documents, Vol. 4, 458.
(62.) Alexandre Marc, “L’Europe que nous voulons,” Servir, May 27, 1948.
(63.) “Congress of Europe, Vol. 1, Plenary Sessions,” CAC, Sandys Papers, box 9/1/8.
(64.) E. Celphan Palmer, “Britain Ready to Aim at Federation Ideal,” News Chronicle, May 6, 1948.
(65.) “International Committee: Congress of Europe—Political Report, May 1948,” in Lipgens and Loth, Documents, Vol. 4, 337.
(68.) Winston Churchill, “What Good’s a Constitution? Collier’s, August 22, 1936,” in Winston Churchill on America and Britain: A Selection of His Thoughts on Anglo-American Relations, ed. Kay Halle (New York: Walker, 1970), 282.
(69.) Kevin Theakston, Winston Churchill and the British Constitution (London: Politico’s, 2004), 131–54.
(71.) Churchill, Complete Speeches, Vol. 6, 6153.
(73.) “Party Politics Again, June 4, 1945,” in Churchill, Complete Speeches, Vol. 7, 7171–72;; David Willets, “The New Conservatism? 1945–1951,” in Recovering Power: The Conservatives in Opposition Since 1867, ed. Stuart Ball and Anthony Seldon (Basingstoke, UK: Palgrave Macmillan, 2005), 171.
(74.) “Party Politics Again, June 4, 1945,” in Churchill, Complete Speeches, Vol. 7, 7172.
(76.) “A Threat to Freedom, June 21, 1945,” in Green, Ideologies of Conservatism, 7192–93.
(77.) Richard Toye, “Winston Churchill’s ‘Crazy Broadcast’: Party, Nation, and the 1945 Gestapo Speech,” Journal of British Studies 49, no. 3 (July 2010): 659–71.
(78.) Paul Addison, Churchill on the Home Front, 1900–1955 (London: Jonathan Cape, 1992), 390.
(79.) Churchill, Collected Speeches, Vol. 7, 7835.
(80.) Speech draft, CAC, Churchill Papers, box 5/26 C, folios 323–24.
(82.) Speech draft, CAC, Churchill Papers, box 5/12 C, folio 427.
(85.) “The United Europe Movement, Royal Albert Hall, May 14, 1947,” pamphlet, CAC, Sandys Papers, box 9/3/1.
(86.) “Socialists’ Project for Europe,” Manchester Guardian, December 11, 1947.
(88.) Clemens A. Wurm, “Great Britain: Political Parties and Pressure Groups in the Discussion on European Union,” in Lipgens and Loth, Documents, Vol. 3, 676–77 ff.
(89.) “Political Commission: Draft of Final Resolution,” Bodleian Libraries Special Collections (BLSC), Conservative Party Archives, box CCO 3/1/88.
(90.) “Resolutions: Congress of Europe (The Hague—May, 1948),” HAEU, Marc Papers, box 230.
(91.) Antonin Cohen, “De congrès en assemblées: La structuration de l’espace politique transnational européen au lendemain de la guerre,” Politique européenne 18 (Winter 2006): 111–13.
(92.) “Congress of Europe, The Hague, Cultural Committee, Saturday, May 8th 1948, 10.15 a.m.,” HAEU, European Movement Papers, box 502; “Resolutions: Congress of Europe (The Hague—May, 1948),” HAEU, Marc Papers, box 230.
(93.) “Assemblée plenière du lundi 10 mai 1948 (après-midi),” HAEU, European Movement Papers, box 441.
(94.) “Resolutions: Congress of Europe (The Hague—May, 1948),” HAEU, Marc Papers, box 230.
(95.) “Congress of Europe, The Hague, Cultural Committee, Saturday, May 8th 1948, 10.15 a.m”, HAEU, European Movement Papers, box 502.
(96.) “ ‘We Are Losing the Things that Matter Most,’ ” Stockport Express, October 23, 1947.
(97.) “David Maxwell Fyfe Speaks at Conservative Rally in Kensington,” Kensington News, May 14, 1948.
(98.) Hansard, HC Deb, December 3, 1947, col. 534.
(99.) Hansard, HC Deb, January 18, 1949, cols. 9–10, 16–18; Hansard, HC Deb, January 20, 1949, col. 34; Hansard, HC Deb, July 25, 1949, cols. 2066–67; Hansard, HC Deb, December 14, 1949, cols. 2843–44, 2857.
(100.) Hansard, HC Deb, June 19, 1950, cols. 871–72.
(101.) Jean Drapier to David Maxwell Fyfe, December 29, 1948, HAEU, European Movement Papers, box 691.
(102.) David Maxwell Fyfe to Jean Drapier, January 3, 1949, HAEU, European Movement Papers, box 691.
(103.) David Maxwell Fyfe to Jean Drapier, January 3, 1949, HAEU, European Movement Papers, box 691.
(105.) On the sequence of meetings of European Movement jurists in late January and early February 1949, see letter from European Movement secretariat to J. Harcourt Barrington, January 24, 1949, HAEU, European Movement Papers, box 691. Also see Hersch Lauterpacht to J. H. Retinger, February 18, 1949, HAEU, European Movement Papers, box 691.
(106.) “EX/P/61: Mouvement Européen: Projet de Convention Relative aux Droits de l’Homme,” HAEU, European Movement Papers, box 574, and CAC, Sandys Papers, box 9/2/2; English translation in “List of Human Rights to be Assured by the European Court (Submitted as a basis for consideration)” in “European Movement: European Court of Human Rights: Recommendations Adopted at the Meeting of the International Council, Brussels, February, 1949,” HAEU, Dehousse Papers, box 91.
(107.) “European Movement Draft Convention on Human Rights,” marked “British Draft, Annexe ‘A,’ ” HAEU, European Movement Papers, box 426; UN Doc. E/CN.4/AC.1/4; Lauterpacht, International Bill of the Rights of Man, 70–72.
(108.) “EX/P/61: Mouvement Européen: Projet de Convention Relative aux Droits de l’Homme,” HAEU, European Movement Papers, box 574; English translation in “List of Human Rights to be Assured by the European Court (Submitted as a basis for consideration),” in “European Movement: European Court of Human Rights: Recommendations Adopted at the Meeting of the International Council, Brussels, February, 1949,” HAEU, Dehousse Papers, box 91.
(109.) “EX/P/61: Memorandum sur une convention européenne des droits de l’homme,” CAC, Sandys Papers, box 9/2/2.
(110.) “Draft Report on a European Convention of Human Rights,” marked “British draft,” HAEU, European Movement Papers, box 426.
(111.) “Draft Memorandum on a European Convention on Human Rights,” marked “British Draft,” HAEU, European Movement Papers, box 426.
(112.) “European Movement Draft Convention on Human Rights,” marked “British Draft, Annexe ‘A,’ ” HAEU, European Movement Papers, box 426.
(113.) European Movement secretariat to J. Harcourt Barrington, February 9, 1949, HAEU, European Movement Papers, box 691; “EX/M/8: Mouvement Européen: réunions du Comité Exécutif des 5 et 6 février 1949 à Paris,” CAC, Sandys Papers, box 9/2/2; “EX/P/61: Mouvement Européen: Projet de Convention Relative aux Droits de l’Homme,” CAC, Sandys Papers, box 9/2/2.
(114.) “Projet de convention sur les droits de l’homme, Brussels, 25–26 Févriér 1949,” HAEU, European Movement Papers, box 426.
(115.) “Committee of [sic] Court of Human Rights: Resumé of Proceedings at the Meeting on the evening of 25th February 1949,” HAEU, European Movement Papers, box 542.
(116.) “Committee of [sic] Court of Human Rights: Resumé of Proceedings at the Meeting on the evening of 25th February 1949,” HAEU, European Movement Papers, box 542.
(117.) “European Movement: European Court of Human Rights: Recommendations Adopted at the Meeting of the International Council, Brussels, February, 1949,” HAEU, Dehousse Papers, box 91.
(118.) “Recommendation Presented by the Commission of the European Court of Human Rights,” February 27, 1949, BNA, Foreign Office Records, box FO 371/79267.
(119.) André Philip, “Après le Congrès de Bruxelles,” Le Populaire, March 4, 1939.
(120.) David Maxwell Fyfe to Georges Rebattet, May 25, 1949, HAEU, Dehousse Papers, box 91.
(121.) David Maxwell Fyfe to Fernand Dehousse, May 26, 1949, HAEU, Dehousse Papers, box 91.
(122.) Fernand Dehousse to David Maxwell Fyfe, May 31, 1949, HAEU, Dehousse Papers, box 91.
(123.) Duncan Sandys to David Maxwell Fyfe, June 11, 1949, CAC, Sandys Papers, box 9/2/9.
(124.) “Note by the Dutch Juridical Section of the European Movement on Draft Proposal EX/P/92 (Convention on Human Rights),” June 27, 1949, HAEU, European Movement Papers, box 426.
(125.) Paul Auer, Paul Bastid, René Courtin, and Daniel Serruys, “Projet de Convention des Droits de l’Homme,” June 29, 1949, European Movement Papers, box 426.
(127.) “Resolutions—Congress of Europe—The Hague—May 1948,” HAEU, European Movement Papers, box 1122.
(128.) David Maxwell Fyfe, “Our Rights Are in Danger,” The Star, May 30, 1949.
(129.) “European Movement Draft Convention on Human Rights,” marked “British Draft, Annexe ‘A,’ ” HAEU, European Movement Papers, box 426.
(130.) Hansard, HC Deb, October 14, 1946, col. 682.
(132.) Hersch Lauterpacht et al., “The Proposed European Court of Human Rights,” Transactions of the Grotius Society 35 (1949): 37–38.
(133.) Hansard, HC Deb, March 24, 1949, col. 579; “Council of Europe, Consultative Assembly, Second Session I (7th–28th August 1950), Reports, Part III,” CEA, 918.
(134.) Alexander Clifford, “MP’s Allowance Cut,” Daily Mail, August 12, 1949; Bill Greig and David Walker, “Assembly Is Shaken by Our ‘Family Rows,’” Daily Mirror, August 12, 1949.
(136.) Strasbourg to Rome, September 14, 1949, De Gasperi Papers, Rome (in the care of Maria Romana Catti De Gasperi), Affari Esteri, box 10.
(137.) Walter Farr, “Report from Strasburg,” Daily Mail, September 9, 1949; “Europe’s Split Personality,” New York Herald Tribune, August 29, 1949.
(138.) Quoted and translated in “New Battle Lines,” New York Herald Tribune, August 29, 1949.
(139.) Maurice Edelman, “The Consultative Assembly at Work,” New Statesman and Nation, August 20, 1949.
(140.) Étienne Borne, “Europe libérale ou Europe socialiste?,” L’Aube, August 20–21, 1949.
(141.) Niall Macpherson, “Europe’s First Step Towards Union,” Daily Telegraph, August 5, 1949.
(142.) Travaux Préparatoires, Vol. 1, 26.
(143.) “Council of Europe, Consultative Assembly, First Session (10th August–8th September), Reports, Part II,” CEA, 448.
(144.) “Council of Europe, Consultative Assembly, First Session (10th August–8th September), Reports, Part IV,” CEA, 1312.
(145.) “Council of Europe, Consultative Assembly, First Session (10th August–8th September), Reports, Part IV,” CEA, 1200, 1202.
(146.) “Whose Human Rights?,” Daily Herald, August 20, 1949.
(147.) “Council of Europe, Consultative Assembly, First Session (10th August–8th September), Reports, Part IV,” CEA, 1184.
(148.) “Council of Europe, Consultative Assembly, First Session (10th August–8th September), Reports, Part IV,” CEA, 1324.
(151.) “Strasbourg (up to date notes),” s.d., CAC, Churchill Papers, box 2/25 B, folio 225.
(152.) “Maxwell Fyfe Indicts the Government,” Blackburn Times, October 14, 1949.
(153.) Travaux Préparatoires, Vol. 2, 294.
(154.) Travaux Préparatoires, Vol. 4, 22.
(155.) “Council of Europe—Convention on Human Rights,” August 1, 1950, BNA, Cabinet Records, box CAB 128/18 CM (50) 52.
(156.) Transcript of cabinet meeting, August 1, 1950, BNA, Cabinet Records, box CAB 195/8 CM (50), 52.
(157.) Transcript of cabinet meeting, August 1, 1950, BNA, Cabinet Records, box CAB 195/8 CM (50), 52.
(158.) “Council of Europe—Convention on Human Rights,” August 1, 1950, BNA, Cabinet Records, box CAB 128/18 CM (50) 52, 191.
(160.) “Council of Europe Convention on Human Rights,” August 4, 1950, BNA, Foreign Office Records, box FO 371/88754; Memorandum addressed to D. S. Cape, August 11, 1950, BNA, Foreign Office Records, box FO 371/88755.
(161.) Anthony Lester, “Fundamental Rights: The United Kingdom Isolated?,” Public Law (1984): 51.
(163.) J. H. Retinger to Guy Mollet, April 19, 1948, and J. H. Retinger to Duncan Sandys, March 1, 1948, HAEU, Lipgens Papers, box 74.
(164.) Peter Clarke, The Cripps Version: The Life of Sir Stafford Cripps (London: Allen Lane, 2002), 355–57.
(165.) Mark Evans, Constitution-Making and the Labour Party (Basingstoke, UK: Palgrave Macmillan, 2003), 22–23; Geoffrey Foote, The Labour Party’s Political Thought (Basingstoke, UK: Macmillan, 1997), 149–50.
(166.) Stafford Cripps, Can Socialism Come by Constitutional Methods? (London: Socialist League, 1933), 7.
(167.) John Ramsden, The Age of Churchill and Eden, 1940–1957 (London: Longman, 1995), 165.
(168.) “Steel Bill Helps Communists,” Nottingham Guardian, December 4, 1948.
(169.) Travaux Préparatoires, Vol. 4, 19–20. Emphasis my own.
(170.) François Robin to Robert Schuman, October 20, 1949; L. Prault to Robert Schuman, November 17, 1949; Françaois Seydoux to L. Prault, December 1, 1949; R. Peltre to Robert Schuman, February 7, 1951; René Schwartz to Robert Schuman, February 22, 1951, CADP, Europe (1945–1960), Conseil de l’Europe (1949–1955), box 26.
(171.) Travaux Préparatoires, Vol. 7, 134, 136.
(173.) “Labour Party General Election Manifesto 1945,” in Labour Party General Election Manifestos, 1900–1997, ed. Iain Dale (New York: Routledge, 2000), 59–60.
(174.) “Conservative Party General Election Manifesto 1950,” in Dale, Conservative Party General Election Manifestos, 88.
(175.) “Fifth Draft—Part II,” BLSC, Conservative Party Archives, box CRD 2/48/21; Branston to Blunt, December 8, 1949, BLSC, Conservative Party Archives, box CRD 2/48/13.
(176.) “Draft Convention on Human Rights Submitted by the European Movement to the Committee of Ministers of the Council of Europe, July 12th, 1949,” HAEU, Sandys Papers, box 9/2/9.
(177.) Hansard, HC Deb, November 13, 1950, cols. 1391–1504; “Council of Europe Debate,” CAC, Churchill Papers, box CHUR 2/26 B, folio 233.
(178.) “Council of Europe, Consultative Assembly, Second Session I (7th–28th August 1950), Reports, Part V,” CEA, 1310.
(180.) “Council of Europe,” March 13, 1952, BNA, Cabinet Records, box CAB 128/24 CC (52) 30.
(181.) “Council of Europe,” March 13, 1952, BNA, Cabinet Records, box CAB 195/10 CC (52) 30.
(182.) Sagittarius, “The Rights of Man,” New Statesman and Nation, August 26, 1949, 214.