Last edited: February 14, 2005

The Accidental Legacy of a Homophobic Humanitarian

As the Human Rights Act comes into force today, Graham Stewart explains why its originator will be spinning in his grave

London Times, October 2, 2000
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"I am not going down in history as the man who made sodomy legal." So said Harold Macmillan’s Lord Chancellor, Lord Kilmuir, the Conservative who helped to draw up the European Convention on Human Rights.

If he is dimly aware of what is going on in his absence, it is reasonable to assume that David Maxwell Fyfe, Earl of Kilmuir, is spinning in his grave. His values are now being torn apart in the name of the very document he did so much to bring into being.

Recently, judges in Strasbourg cited the European Convention on Human Rights in order to rule in favour of gay group sex, effectively overturning Britain’s prohibition of such activities under the Sexual Offences Act. It is the latest example of how modern judges are using the convention to force changes in the law that its original co-author never intended back in 1950.

With the Human Rights Act, which incorporates the convention into English law, coming into force today — an event described by the Home Secretary, Jack Straw, as the greatest constitutional change since Magna Carta — Maxwell Fyfe’s unintended revolution will gather pace. How the man and his legacy have parted company says much about one of the most generally applicable laws of all, that of unintended consequences.

Maxwell Fyfe understood that a successful politician was often one who had made an early start. When he entered Parliament as a Liverpool Conservative MP aged only 35, he had already spent 14 years hunting for a seat. By then he was also a silk and married to the actor Rex Harrison’s attractive sister. These were early trophies for the son of an impecunious Scottish schoolmaster.

At Westminster his legal legwork was in demand and he served as solicitor and attorney-general in Churchill’s Cabinet. But it was his part as the deputy chief prosecutor in the Nuremberg trial of Nazi leaders that catapulted him into the public eye. Where others failed, he succeeded in cracking the courtroom self-confidence of the star defendant, Hermann Göring.

Following the judgment of Nuremberg, Maxwell Fyfe became attracted to the cause of European integration. In particular, he supported the idea of a continent rebuilt under a common code of human rights. He wanted to ensure that the violation of liberties perpetrated by the Nazis would not recur. He asserted himself in the newly created Council of Europe, quickly becoming the chairman of its legal and administrative council, and a rapporteur on the committee drafting the convention. The fruit of his work was the European Convention on Human Rights, which Britain ratified in 1951.

The signatories agreed to abide by the convention only as part of international treaty law, a legal framework of obligation between nations, rather than between state and citizen. There was then no European court for individuals to challenge the laws of their national governments. At Westminster, parliamentarians knew that they were still masters in their own house. Thus, when the Conservatives were returned to power in 1951 and Maxwell Fyfe became Home Secretary, he was able to pursue a range of policies that would have been struck down if a European Court had the jurisdiction over his Convention.

Already a stern proponent of the existing laws criminalising homosexual acts, Maxwell Fyfe cracked down further on such activities. A year after his arrival at the Home Office, the combined prosecution rate for actual or attempted sodomy or gross indecency had soared to 5,443 (it had been 1,276 in 1939). With a compliant commissioner of police supporting his objective, the methods employed would fall foul of any modern interpretation of the European Convention.

The use of agents provocateurs to trap gay men was greatly increased. In seeking a conviction in the trial of Lord Montagu of Beaulieu, the police made searches without the appropriate warrants, tapped telephones and forged documents.

"Homosexuals in general are exhibitionists and proselytisers and are a danger to others, especially the young," Maxwell Fyfe assured the House of Commons in 1953, the year of John Gielgud’s arrest for importuning. "So long as I hold the office of Home Secretary, I shall give no countenance to the view that they should not be prevented from being such a danger." He subsequently sanctioned the establishment of the Wolfenden Report into homosexuality, but not its findings. Decriminalisation was wrong: "sodomistic societies and buggery clubs" fostered "lying, cruelty and indecency."

Maxwell Fyfe’s biggest test came when he turned down clemency for the burglar Derek Bentley, whose accomplice, Christopher Craig, had shot dead a policeman. Aged 16, Craig was too young to hang for the crime, but the 19-year-old Bentley (who had a mental age of 11) was considered culpable because he had shouted: "Let him have it, Chris." This could have been an instruction for Craig either to shoot the PC or to hand over the gun.

The Home Secretary was unmoved by appeals for clemency from the jury. "Let the law take its course," he uttered, and Bentley was hanged; 45 years later, the Court of Appeal overturned the conviction.

Having become Lord Chancellor, Maxwell Fyfe’s political career ended in 1962 when he was sacked from the Cabinet in the "Night of the Long Knives". Complaining to Macmillan that he had been given less notice than was needed to dismiss a cook, Macmillan replied that it was more difficult to get a good cook than a Lord Chancellor.

That he is now a largely forgotten figure is, on the surface, surprising. As an early proponent of both EEC membership and unrestricted Commonwealth immigration into Britain he was on the progressive wing of Tory politics. Yet, as his actions in office demonstrated, his liberalism had little to do with the subsequent "permissive society" hailed by Roy Jenkins. The 1964-70 Labour Government gave British citizens the belated right to take their cases to Strasbourg where a European Court had in 1959 been established to adjudicate on the Human Rights Convention — but from whose jurisdiction the Macmillan Government had excluded Britain.

Maxwell Fyfe was a product of his time. Coming in the aftermath of the Nazi atrocities, the European Convention on Human Rights was to be the first trip-wire against the future spread of communism.

The emphasis was on shoring up existing liberties against possible assault following a totalitarian take-over of power rather than letting judges rule against laws already accepted in 1950 by the convention’s democratic signatories. Yet, 50 years of peace and prosperity later, it has put parliamentary democracy in the dock. Maxwell Fyfe’s declaration limiting the abuse of power has ended up becoming the hoop through which even the most minor legislation must leap. In ways unimaginable to Maxwell Fyfe, the law has taken its course.

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