Row Erupts in Britain Over Ensuring Civil Rights

Alexander MacLeod

Thursday, Oct. 30, 1997 | 9:46 a.m.

LONDON -- Britain is about to turn its back on a key aspect of its own 300-year-old legal tradition and embrace a human rights system that has operated in continental Europe since the end of World War II.

But the government's decision to give British judges the power to enforce a right of privacy and other fundamental civil liberties is running into fire from critics. They call it a betrayal of parliamentary democracy and a sure-fire recipe for conflict between the judicial and legislative branches of government.

Unlike the United States, Britain until now has not codified its civil rights. Journalists, for example, have no First Amendment-style guarantees of free speech and freedom of the press.

Home Secretary Jack Straw declared, "This is an historic day," when the new human rights bill was published last Friday, in the first step toward legislative approval. "We are about to bring British rights home," he said.

Britain signed the European Convention on Human Rights after World War II, but never incorporated the convention into its own laws. As a result, appeals against British legal decisions have to be lodged with the European Court of Human Rights in Strasbourg, France. Cases take an average of five years to resolve and seldom cost individuals less than 30,000 ($48,000).

"This has been a long-running scandal," says John Wadham, director of the London-based human rights organization Liberty. "The fact that there have been so many successful British appeals to the Strasbourg court proves that our own laws were unfair."

Ironically, on the same day Mr. Straw published his bill, the Strasbourg court again found Britain in breach of the European convention. It awarded 10,000 compensation to a man held in a mental hospital for more than three years because there was no room for him in a supervised hostel. The court ruled that the man's liberty had been violated.

The repeated defeats at Strasbourg - 50 out of 86 cases heard so far - have put pressure on Britain to change its laws.

Last year, for example, the court found that Britain's home secretary had no right to detain indefinitely in prison children convicted of murder. As a signatory of the Strasbourg Convention, Britain has to accept the court's judgments.

Straw's bill has run into a hail of fire from the Conservative parliamentary opposition.

Shadow home secretary Sir Brian Mawhinney claims incorporation of the European Convention into British law will be "the first time in history when our judges are going to be able to tell Parliament what laws they should and should not pass."

Under the new arrangements, if a British judge finds an existing law clashes with the Human Rights Convention, there will be a "fast-track" system for Parliament to change that law.

Mr. Mawhinney says this will "undermine the sovereignty of Parliament," a complaint Straw denies. Their argument spotlights a basic difference between British and other European concepts of human rights.

In British law, a right is defined as a "freedom," or a guarantee against coercion. The right of free speech falls into this category. In the continental tradition, a right is an "entitlement," such as an individual's right to work, or a government's right to raise taxes.

For the last three centuries, the British Parliament has claimed to be the highest court in the land. In effect, it acted as defender of the rights of the monarch's subjects.

There were thus seen to be no grounds for making the legislature, as in other European countries, subject to law as interpreted by constitutional courts.

Ian Mowat, a lawyer in Edinburgh, Scotland, supports the Conservative view. He says: "I am opposed to incorporating the European Convention on Human Rights into British domestic law, because it would mean an unacceptable transfer of political power from Parliament to the courts. Judges would be empowered to strike down laws which, in their view, contravene the convention."

There is little chance, however, of the government backing down. Straw plans to introduce his bill in the current session of Parliament. It is expected to become law next year.

Meanwhile, he says, British judges will receive special training to help them understand the new system.