Maxwell Fyfe and the origins of the ECHR

During the recent debates about the European Convention on Human Rights, triggered by the Strasbourg court’s Hirst judgment and the UK Supreme Court’s Cadder and Fraser judgments, the name of Sir David Maxwell Fyfe has frequently been cited as one of its “principal authors”. The First Minister has made this reference, particularly emphasising Fyfe’s Scottish nationality, during his attempt to circumscribe the Supreme Court’s remit north of the border. The irony is that he was an English-qualified barrister, so it is unlikely that the tradition of Stair weighed heavily on his mind when he set to work on the Convention. In truth, his nationality is entirely incidental, but it is nevertheless a convenient way to explore the origins of the treaty which has made such a profound impact on domestic law north and south of the border.

Fyfe was born in Edinburgh in 1900 in relatively modest circumstances, but managed to secure a place at Balliol College, Oxford. Despite only achieving a third, he quickly established himself as a criminal barrister in Liverpool, where he also became a Conservative MP. He served as a law officer in Churchill’s Government, before acting as the lead British prosecutor at the Nuremberg trials, where he won praise for his skilful cross-examination of Reichsmarschall Hermann Göring. His experiences on the continent made him a passionate European, while his exposure to significant amounts of documentary and oral evidence detailing Nazi atrocities also sowed the seeds of his commitment to human rights.

After returning to the opposition benches in the Commons, he quickly became involved in the European Movement and it was in this context that his involvement in drafting what became the Convention began. While he was certainly involved in composing the first draft, the end product was the collaborative outcome of many hands and not one but four committees, which struggled to reconcile competing legal traditions, ideologies, faiths and the prevailing political priorities of the day. As a result, Fyfe’s role could better be described as diligent midwife rather than one of its principal authors.

First moves

After the formation of the United Nations in 1945, its Universal Declaration of Human Rights was adopted in December 1948. It immediately became clear that the next step, a legally binding charter, would take a number of years to achieve. As a result, a number of individuals seized the initiative to make faster progress at the European level, where the differences between legal systems which already respected fundamental rights were ostensibly easier to reconcile. In the context of the near stillbirth of an international bill of rights, the Convention was forged on a ravaged continent where the memory of Nazi occupation and atrocities was still fresh and the fear of Communist influence from the east was becoming more prevalent in the early years of the Cold War.

It also formed part of wider efforts to achieve greater European unity, and at this stage the Conservatives, now in opposition and led by figures such as Sir Winston Churchill and Harold Macmillan, took the lead in championing this cause, as well the need for a human rights charter. However, their Labour counterparts were less enthusiastic and Clement Attlee’s Government pursued a more isolationist approach. While the British still enjoyed a great deal of prestige on the Continent for their wartime efforts, relations with their European partners would shortly turn sour a few years later as they refused to embrace moves towards “ever closer union”.

Following Churchill’s call for “a kind of United States of Europe”, he presided over a Congress of Europe in May 1948, which brought together more than 700 parliamentarians from across the continent. The European Movement emerged from this meeting, with a commitment to achieving greater European unity and the adoption of a human rights charter. The British wing of this organisation took the lead in conducting preparatory work on a draft Convention in early 1949, which involved Fyfe and numerous international law jurists, including Professor Arthur Goodhart and Professor Herscht Lauterpacht. J Harcourt Barrington, a barrister who had been a member of Fyfe’s prosecution team at Nuremberg, was also recruited for his drafting skills.

The next step was the establishment of a juridical section tasked with developing the proposals further. Pierre-Henri Teitgen, a resistance hero and later Minister for Justice in post-occupation France, whom Fyfe had first met in Nuremberg, became the chair, with Fyfe acting as co-rapporteur alongside Fernand Dehousse, a Belgian jurist. It was likely that Fyfe and Barrington played a primary role in producing the draft, which simply listed a number of rights and made provision for their enforcement by a Commission, receiving petitions from individuals in the first instance, to be considered by a powerful European Court of Human Rights if deemed admissible.

Another result of the Hague Congress was the establishment of the Council of Europe in May 1949, consisting of an intergovernmental Committee of Ministers, taking decisions by unanimity, and an advisory inter-parliamentary Consultative Assembly. While the Committee of Ministers initially tried to dictate the Assembly’s agenda, it eventually acquiesced in the latter body’s desire to discuss human rights on the presumption that its deliberations would be relatively harmless. As delegates, Fyfe and Teitgen immediately presented their draft Convention to the Assembly on 19 August 1949, when Fyfe declared that “we cannot let the matter rest at a declaration of moral principles and pious aspirations, excellent though the latter may be. There must be a binding convention, and we have given you a practical and workable method of bringing this about”.

The matter was quickly referred to the Assembly’s Legal and Administrative Questions Committee, comprising 24 lawyer-delegates, of which Fyfe became chair and Teitgen the rapporteur. After the assembly endorsed the committee’s report, which reflected the European Movement’s draft with some limited changes, it was referred to the Committee of Ministers on 9 September 1949 with an invitation to prepare a Convention along the lines so proposed.

Sovereignty v Authority

From the outset, the more sovereignty-conscious states – particularly the UK – were hostile to the creation of a binding Convention. Throughout the negotiations the British exercised persuasive influence, persistently arguing that the rights should be more precisely defined – ensuring along the way that they were in conformity with existing English common law rights – and also attempting to exclude or limit the role of a court and the right of individual petition. The ministers appointed a committee of legal experts to do the necessary technical work, and after struggling to make a suitable appointment, the British Government brought a former Home Office legal adviser out of retirement, Sir Oscar Dowson, to act as its representative.

They met in February and March 1950 but struggled to reach a consensus. As a result, two versions of the Convention were produced: one reflecting the Assembly’s draft and the other reflecting the UK’s preferred approach, helped along by the UK representative’s contribution of draft provisions. The Committee of Ministers was unconvinced by their findings and a conference of senior officials was then convened to produce a definitive draft. Samuel Hoare, the under-secretary at the Home Office, acted as the UK representative and his insistence ensured that the experts’ second version became the favoured draft. This was amended to make the court’s jurisdiction optional; allow states to derogate from certain provisions during public emergencies; remove the political liberties provision (which required regular free elections and the right to form an opposition); and the addition of a “colonial clause” so that the Convention would not apply to dependencies unless the state concerned so declared.

At this stage back in London, the Labour cabinet was engaged in a furious debate about whether it should commit itself to the Convention, with concerns about its potential ramifications in the colonies causing particular concern. Lord Chancellor Viscount Jowitt, in particular, was scathing about the quality of its draftsmanship and considered that its vaguely drafted provisions posed a grave threat to the sanctity of the English common law. It is not evident that the preservation of Scots law caused them as much concern. After much debate the cabinet eventually acquiesced due to political considerations, not wishing to be seen as obstructive and provoking more bad feeling among their continental colleagues. The Foreign Secretary, Ernest Bevin, was duly mandated to support the Convention in Rome.

Final signature

The conference of senior officials’ report was considered by the Committee of Ministers in early August 1950, which appointed a Sub-Committee on Human Rights to finalise the text for the ministers’ ultimate approval, mostly making minor amendments but accepting the British proposal that the right of individual petition should also be rendered optional. The ministers approved the draft Convention on 7 August and then referred it to the Assembly which considered it in September.

While Fyfe adopted a pragmatic approach, realising that it was important to secure agreement of some form of a Convention rather than none at all, he nevertheless led the Assembly’s calls for a number of amendments. While it conceded the optional jurisdiction of the court and the more precise definition of rights, these included a suggestion to water down the optional right of individual petition; the deletion of the colonial clause; the reinsertion of the political liberties provision; and the addition of two new provisions concerning property and education. Much to Fyfe’s consternation, the Committee of Ministers rejected these suggestions out of hand. However, during a subsequent bad-tempered session of the Assembly, the prospect of the three contested provisions being appended to the Convention at a later date was suggested by the ministers.

The signature of the Convention eventually took place in the Palazzo Barberini in Rome on 4 November. The Committee of Ministers’ earlier intransigence still irritated a number of Assembly delegates and resulted in the French and German delegates, including Teitgen, boycotting the signing ceremony. In his speech the President of the Assembly, Paul-Henri Spaak, remarked bitterly that it was “not a very good Convention, but it is a lovely Palace”. Fyfe was more positive, saying: “Some may say that it is of doubtful value that the democratic nations should reinforce individual liberty among themselves and leave the totalitarian states untouched. We do not accept this pessimistic view. We consider that our light will be a beacon to those at the moment in totalitarian darkness and will give them a hope of return to freedom. Further, the Convention need not only be a test of membership… but also a passport of return to our midst”.

Despite having been strongly opposed to the Convention, the UK became the first state to deposit its instrument of ratification in Rome on 8 March 1951, entering no reservations and not opting to accept the court’s jurisdiction and the right of individual petition. True to its word, the Committee of Ministers also promulgated the First Protocol, containing the three contested provisions, on 20 March 1952. After the requisite number of ratifications occurred, the Convention entered into force on 3 September 1953, with the Commission being established in 1954. The UK also decided to extend its application to 42 Commonwealth territories (not including Hong Kong and the now Zimbabwe). Because eight states needed to accept the optional clause before it was triggered, the court was not established until 1959, at which point it replaced Committee of Ministers’ decision-making role with respect to states that had accepted its jurisdiction. Lord McNair, a British judge, became its first President.

Fyfe in office

After the UK’s ratification the Conservatives returned to power. Fyfe became Home Secretary and later Lord Chancellor from 1954 as Viscount Kilmuir. Despite his earlier commitment to the principles underlying the Convention, the realities of ministerial office later saw him defend derogations from its provisions in order to deal with unrest in Britain’s colonies. On the right of individual petition, he reversed his earlier support, maintaining that it was open to considerable abuse and that its extension to the colonies would be unwise as they were still too “politically immature”. He also resisted efforts by backbench peers to adopt a right of privacy bill, while his trenchant opposition to the abolition of the death penalty (as evidenced by his refusal to grant a reprieve to Derek Bentley in 1953), and the decriminalisation of homosexuality, demonstrated his less libertarian instincts.

Following Kilmuir’s summary dismissal in 1962 in the Night of the Long Knives and the return of a Labour Government two years later, the UK would finally accept the two optional clauses in January 1966, following advice from the Lord Chancellor, Lord Gardiner, that it would have minimal consequences for domestic law. Fyfe died a year later, shortly after the UN finally reached agreement on the International Covenant on Civil and Political Rights, the binding corollary to the Universal Declaration.

Founders’ legacy

Did the founding fathers of the Convention anticipate the effect that it would come to have in domestic legal systems and the range of scenarios that would engage its provisions? Almost certainly not. The signatories assumed that they, as civilised nations, already abided by its terms and it was felt necessary to institute a system to act as an “alarm bell” if any states began to slide back into totalitarianism. In the period following its adoption, awareness of the Convention among academics and practitioners in the UK was non-existent, and it would not be until the late 1970s that the court's jurisprudence would make a tangible impact on the signatories' domestic legal systems. France sluggishly refused to ratify until 1974, with Greece re-ratifying in the same year (having renounced it in 1969), while Russia’s entry into the fold in 1998 marked the end of the eastward march of the court’s jurisdiction since the fall of the Berlin Wall – thus realising Fyfe’s ideal. From another perspective, Teitgen’s preference for a more robust Convention also arguably reached fruition with a bolder and more interventionist court. It now applies to 47 states and protects the rights of 800 million individuals, with only Belarus and the Vatican remaining outside its jurisdiction.

In 1998 the UK incorporated the Convention into domestic law, at the same time as institutional reforms in Strasbourg saw the abolition of the Commission and allowed individuals to complain directly to the court. Acceptance of the court’s jurisdiction and the right of individual petition also became compulsory, with the Committee of Ministers losing its decision-making role but retaining its duty to supervise the execution of judgments. Protocol 14 instituted further reforms, taking effect in 2010, to make the court more efficient and reduce its workload, which has been augmented by the on-going Interlaken process.
Ironically, ahead of assuming the chairmanship of the Council of Europe this November, the UK Government’s stated policy is similar to that being pursued in Edinburgh: to achieve a reconfiguration of the court’s relationship with national courts and parliaments in order to increase the margin of appreciation awarded to domestic legal systems in accordance with the principle of subsidiarity.

Needless to say, while the court is still buckling under a huge case backlog – which the EU’s anticipated accession to the Convention is only likely to compound further – achieving further reform will be difficult in an intergovernmental organisation of 47 states. The UK’s return to a central role in Strasbourg, 60 years after it essentially dictated the final form of the Convention, may see history attempt to repeat itself.