Britain's involvement in European institutions is often taken to entail a concession of sovereignty—a national betrayal, from one point of view, or a strategic pooling of sovereign power in a world faced with challenges too complex for nation states. Arguments of both kinds were made before the United Kingdom's 1975 referendum on European Community membership as well as the 2016 Brexit referendum.Footnote 1 “Euroskeptics” have long denounced adherence to the European Court of Human Rights in Strasbourg as an unacceptable limitation on British sovereignty.Footnote 2 Yet, as the case of Tyrer v. United Kingdom showed in the 1970s, enforcing international human rights obligations called for state power that the British constitution could not consistently deliver.Footnote 3 Supranational human rights guarantees, far from eroding the authority of the state, depended on the exercise of central state power over regions and dependencies. At issue in Tyrer was whether the whipping, or “birching,” of juvenile offenders on the Isle of Man constituted “degrading treatment or punishment” under the European Convention on Human Rights. When the court found that it did, the British government had to secure compliance from the island authorities. Although the Isle of Man is just off the coast of Great Britain, it had some of the constitutional features, and expectations, of a former colony.Footnote 4 How the government dealt with the Isle of Man had direct implications for a host of other small territories in the Commonwealth, as the British empire had come to be called, particularly in the Caribbean. The judgment's protracted endgame was an object lesson in how much Britain's “unwritten” constitution depended on negotiation, manipulation, and avoiding the overt exercise of powers that might crumble upon use.
Britain had played a key part in drafting the European Convention on Human Rights and ratified it in 1951, but until 1966 individuals could not sue the government to enforce the Convention.Footnote 5 The Labour government of 1964–1970 signed on to the optional clause in the Convention allowing individuals access to the European Commission of Human Rights (which heard cases at first instance) and the European Court of Human Rights (which heard cases referred to it by the commission) for three years. The government renewed it for another three years in 1969. When the decision to renew the right of individual petition came around again, cases before the commission were putting considerable pressure on the British government. The Conservative Party, led by Edward Heath, was now in power, and Cabinet seriously considered letting the right of individual petition lapse. At the end of 1973, the home secretary, Robert Carr, noted that Britain's denial of the right to enter and remain to British passport-holders from East Africa had been ruled a violation of the Convention; a hundred prisoners in Britain were petitioning the commission each year over their treatment; and in Northern Ireland, “[t]he introduction of internment, combined with allegations of torture, could well lead to an increase in the number of … [applications to Strasbourg] used as a political weapon with the deliberate intention of fomenting prejudice and suspicion.”Footnote 6 Cabinet resolved to renew individual petition for another two years only (though the next government renewed access again, and as has every government since). People in the United Kingdom and its dependencies thus had the right to petition the European Commission on Human Rights when Anthony Tyrer and Andrew Hays were birched in Castletown on the Isle of Man and took steps to challenge the institution of corporal punishment in 1972.
The Tyrer case unfolded at a formative moment in British legal activism, as left-wing civil-liberties lawyers who had been wary of human rights discourse began taking cases to Strasbourg. The early and mid-1970s were also a pivotal moment in the history of the European human rights bodies. The Strasbourg institutions became increasingly assertive and began to have a pronounced impact on the legal systems of the contracting states—especially Britain's.Footnote 7 Mikael Rask Madsen has observed that “the United Kingdom was the first member state in which the Court had a real, immediate, and continuous domestic importance as well as a broader audience.”Footnote 8 In many cases of this time, the court and commission explored relatively uncharted territory—including, in Tyrer, the meaning of “degrading treatment or punishment” in Article 3 of the European Convention on Human Rights. What amounted to “degrading treatment or punishment” could change over time. Tyrer is best known today as the case in which the European Court of Human Rights expressly endorsed the principle of dynamic and evolutive interpretation.Footnote 9 The Convention was “a living instrument which … must be interpreted in light of present-day conditions.”Footnote 10
Yet the present was heterogeneous. The Convention's framers saw the rights it protected by the Convention as specifically European. Whether they extended to contracting states’ overseas territories depended on “local requirements,” in the words of Article 63(3)—on how far colonial subjects had progressed toward “civilization.”Footnote 11 Defending this hierarchy of civilization was fraught by the 1970s.Footnote 12 When it found whipping to constitute degrading punishment, the European Court of Human Rights declared that the Isle of Man had always been part of “the European family of nations” and subject to their level of “civilization.”Footnote 13 British officials and government lawyers did not want British territories to fall below the standards of the rest of “western Europe,” but, in an age of decolonization and calls for regional autonomy within the United Kingdom itself, most of them were reluctant to tell local politicians on the Isle of Man, let alone the Caribbean, that they had to measure up to civilized standards.
I
In the Irish Sea between Liverpool and Belfast, the Isle of Man is British territory but not part of the United Kingdom. The Royal Commission on the Constitution, established by the British government at the end of the 1960s in response to independence movements in Scotland and Wales, described its “constitutional position” as unique and its “system … of government” “not capable of description by any of the usual categories of political science.”Footnote 14 Like the Channel Islands of Jersey and Guernsey, the Isle of Man is a “crown dependency” with its own executive, legislature, and judiciary. Although the crown dependencies make their own domestic laws, they are represented by the British government in their relations with other nations and with international bodies. Tyrer and Hays’ petition to the European Commission of Human Rights brought the Isle of Man's penal policy into the sphere of Britain's foreign relations.
Whipping as punishment for a crime was largely abandoned in Britain in the nineteenth century, at least for adult offenders. In the United Kingdom up to the eve of World War II, flogging was still deemed suitable for the young, partly because of the lack of prisons for young offenders. The Attlee Labour government abolished judicial corporal punishment in Great Britain (i.e., England, Scotland, and Wales) in 1948.Footnote 15 The 1948 legislation did not extend to Northern Ireland.Footnote 16 The use of whipping not only continued, but escalated, against indigenous people in British colonies, notably in Kenya.Footnote 17 In 1956, the Greek government brought a case against the United Kingdom to the European Commission of Human Rights alleging that corporal punishment regulations in Cyprus, a “crown colony” at the time, contravened the Convention, among other abuses committed by British authorities there. The commission abstained on the matter, determining that the British government had the power to derogate from the Convention due to the existence of a “public emergency” in their colony. The commission suggested more broadly, however, that the judicial corporal punishment of youth “raises legal issues of some seriousness” under the Convention and expressed approval of its abolition in the metropole.Footnote 18
On the Isle of Man, whipping with a bundle of dried birch branches remained a conspicuous part of the penal system, and even a symbol of Manx identity. Civic leaders set great store in the idea of the Isle of Man as a safe, proper place: a peaceful place to retire (a disproportionate number of its residents were retirees) and a more respectable vacation destination than England's seaside resorts. The Manx authorities regarded the threat of the birch as a warning to tourists, though it was meted out to locals as well. The sentence was only available for males aged between 14 and 21, an age bracket that had once consisted almost entirely of wage-earners still living with their parents but which, by the 1970s, included a substantial number of young men still at school (being hit with a cane was a standard punishment in schools on the Isle of Man as in England).Footnote 19 The symbolic importance of birching was out of proportion to the number of actual sentences. Between 1967 and 1972, the number of birchings each year ranged from zero to seven.Footnote 20
Birching enjoyed strong public support on the Isle of Man, but when magistrates acted precipitately or particularly harshly in passing the sentence, there were calls for reform even from establishment figures on the island. Additional provision for appeal was introduced in 1969 after the whipping of a fifteen-year-old boy from Preston in Lancashire.Footnote 21 He and his girlfriend, also fifteen, had travelled to the Isle of Man and managed to convince a landlady that they were married. Their landlady realized they had taken money from the electricity meter and called the police, who found the two in the attic, unconscious. They had written a joint suicide note and taken an overdose, but the sedatives they had swallowed turned out not to be life-threatening. Two days later, the young man stood trial for snatching a woman's handbag the week before the couple had tried to end their lives. The magistrates found him guilty and had him birched.Footnote 22 In 1972, Raymond Kenison, a Manx probation officer, persuaded the local branch of the probation officers’ trade union to campaign against the “barbaric” punishment.Footnote 23 The most persistent local activist was the Belgian-born Angela Kneale, the Isle of Man's honorary French consul.Footnote 24 The National Council for Civil Liberties (NCCL) kept itself informed of birching cases on the island, but it was more interested in corporal punishment in schools.Footnote 25 The NCCL's involvement in the fight against judicial corporal punishment spiked dramatically in 1972 when it took up the case of Anthony Tyrer and Andrew Hays.
Tyrer and Hays and two other boys brought beer into their high school in Castletown, south of the island's capital, Douglas. A prefect—another student—caught them and reported them to the head teacher, who caned them. Later on they found the prefect and beat him up.Footnote 26 They knocked him to the ground and kicked him in the head, the legs, and the groin.Footnote 27 Hays was on probation for larceny and house-breaking and the head teacher said he had “the makings of a young delinquent.”Footnote 28 Tyrer had been cautioned twice for unspecified offenses but had no criminal convictions.Footnote 29 He had “rarely been in trouble” at school.Footnote 30 The four youths were charged with assault occasioning actual bodily harm. They were convicted and sentenced to birching by the Castletown magistrates. Hays was sentenced to five strokes, though after examining him the doctor recommended he be given no more than three.Footnote 31 Tyrer was to be given three strokes because of his good conduct at school.Footnote 32 Tyrer appealed to the island's High Court, to no avail.Footnote 33 When he went with his mother for the medical examination required before the sentence could be carried out, he was “in a distressed state,” which the doctor blamed on his mother: “It's all your fault, you should have let him be birched in the first place,” rather than appealing.Footnote 34 The doctor certified that he was fit to be birched, and he went, this time with his father, to the court building. Police officers led them upstairs to what Tyrer thought was the jury room. Police officers “told me to take my trousers and underpants down and bend over a table in the room. I was held by my head in a sort of ninety degree position so that I could not see what was happening. I was also held by a policeman by each arm.”Footnote 35 This was the standard procedure.Footnote 36 Tyrer continued: “On the first stroke the birch broke. I remember pieces being shattered all over the room.” After the third stroke, his father could not contain himself and “went for” one of the police officers. The other officers restrained his father and the birching stopped. “I pulled up my trousers and went downstairs to my mother, leaving my father with the police.”Footnote 37
Tyrer and Hays then petitioned the European Commission of Human Rights with the help of a lawyer from the NCCL. The NCCL sponsored more petitions to Strasbourg involving the United Kingdom in the 1970s than any other pressure group, even though its legal department consisted of a single lawyer.Footnote 38 Before the 1970s, the NCCL had kept its distance from human rights discourse. As Tom Buchanan has observed, the “concept of civil liberties was steeped in the ‘English’ tradition of individual freedoms,” and the NCCL “was strongly associated with the political left,” whereas Britain's human rights activists were “more at home in religious and non-political associational cultures.”Footnote 39 As Chris Moores writes, some in the NCCL worried that a focus on human rights “had a capacity to depoliticize.” Others were suspicious of the European Court of Human Rights on account of the way the National Association for Freedom (which became involved in the birching dispute) was using it to challenge the power of trade unions. Nevertheless, as the NCCL's general secretary Patricia Hewitt recognized, the European Court of Human Rights was “valuable for creating publicity and legitimating the NCCL's efforts to challenge British law and government policy.”Footnote 40
The architect of Tyrer and Hays’ case was Lawrence Grant, legal officer for the NCCL and a veteran of the council's work on Northern Ireland.Footnote 41 Tyrer and Hays authorized Grant to act for them, and both sets of parents gave their consent.Footnote 42 In the application to Strasbourg, Grant argued that the punishment violated Articles 1, 3, 7, 8, 13, and 14 of the European Convention on Human Rights. The most important violations were of Articles 3 and 14. Article 3 stated that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” This was the crux of the case, of course. At different times, Grant provided different justifications for the claim that the Isle of Man's penal practice violated Article 14's stipulation that the rights and freedoms guaranteed under the Convention be secured “without discrimination.” Grant argued variously that birching was discriminatory because it was only applied to males between the ages of 14 and 21, and, more ambitiously, “that the punishment is primarily pronounced on persons from financially and socially deprived homes.”Footnote 43 A judge on the island vehemently disputed the latter claim.Footnote 44 In the case of Tyrer and Hays, the Isle of Man government sought reports from the boys’ probation officers about the homes, which were well-kept, and their family life, which seemed good: this, the official responsible said, was “[t]he only available information to show whether or not the two petitioners come from homes that can fairly be described as ‘financially and socially deprived.’”Footnote 45
II
With the petition lodged, the British government had to decide how—and whether—to defend the case. The government's response had to be negotiated between the Attorney General's Department, the Home Office, and the Foreign and Commonwealth Office. The Home Office, Britain's powerful interior ministry, dealt with criminal justice, and it was also the department responsible for the Isle of Man. Because the jurisdiction of the commission and court in Strasbourg arose from an international agreement, the Foreign and Commonwealth Office asked to lead the government conduct of the case.Footnote 46 And the attorney general, as the government's first law officer, was responsible for determining the government's legal position. Samuel Silkin, the attorney general at the time of the Isle of Man case, professed the orthodox view that his first responsibility was to the law rather than the government he served in.Footnote 47 Ministers and civil service lawyers in the Home Office and Foreign Office worried that Silkin's opinion on whether birching was degrading under the European Convention on Human Rights would create a “constitutional storm” or at best a time-consuming administrative and diplomatic mess that they would have to clean up.Footnote 48
Silkin saw two main possibilities. If the government took the view that birching was not a violation of the Convention, “whatever other views one may have about it,” then the British government should “defend itself before the Human Rights Commission on the basis that it is not a violation.” The British government's “view of the merits of the island's penal policy as such” was irrelevant to the legal issue of whether birching violated Article 3 of the Convention. But if the government decided that birching was “‘degrading’ within the meaning of Article 3,” then the proper course of action was not to defend the case but “to secure a change in the law of the Isle of Man.”Footnote 49 Ministers and civil servants thought there was a strong chance that Strasbourg would find that birching was degrading. Their preference was to fight the case and lose it rather than have the attorney general decide at the outset that birching violated the Convention. Fearing that Silkin would recommend that the government fold, they held off lodging a formal request for the attorney general's advice.
John Harris, an experienced Labour Party strategist brought into government in 1974 as a Home Office minister, was concerned that Tynwald, the Manx parliament, would react badly if the British government decided that birching violated the Convention without seeing the matter through the European Commission of Human Rights. But if Britain defended the case and lost, “the Isle of Man could be brought to act upon that judgment, with whatever ill-grace.” The other two crown dependencies, Jersey and Guernsey, which also had birching laws but had let the practice lapse, would accept the commission's decision “with very little demur.” However, Harris went on, “we should provoke the most bitter reactions there if we were to instruct Tynwald, on an opinion unsupported by any decision at Strasbourg, to legislate to abolish this punishment, with the implied threat that if they failed to do so we would pass overriding legislation at Westminster. This would be represented as a gross interference with the domestic affairs of the Island unwarranted by any authoritatively established international obligation.”Footnote 50 The Home Office lawyer K. P. Witney expressed similar concerns at the beginning of 1974 and, as the government worked out its position over the course of that year, he drafted Harris's communications on the subject. “Purely on an expedient view,” Witney remarked, “… we would prefer to see the proceedings through at Strasbourg.” “If … we have to drop the proceedings and go to the Islands with an opinion unsupported by any ruling at Strasbourg, I believe that we shall be in serious trouble. This is just the sort of issue that many of those in the Isle of Man would delight to seize upon and to magnify.”Footnote 51 Significantly, both Witney and Harris thought that the Manx authorities would be more willing to bend to Strasbourg than to Westminster.
The island's lieutenant-governor, Sir John Paul, agreed it would not go down well on the island if the British government decided to “anticipate or, it might be argued, to arrogate to herself the responsibility of the European Court in this matter.” The lieutenant-governor was the Queen's official representative on the island.Footnote 52 The post was never filled by a Manx native—the job usually went to high-ranking military officers or veterans of the colonial service. Paul had previously served as governor of Gambia, the Bahamas, and British Honduras (before it became Belize). Paul told Witney at the Home Office that if the British government pre-empted the European Court of Human Rights and told Tynwald what to do, it “could lead to a serious constitutional crisis.”Footnote 53
“Serious constitutional crisis” was an exaggeration, but the Isle of Man's constitutional and geographical position often caused friction with the British efforts to regulate commerce on the mainland, especially when those efforts involved international institutions. One example was the long-running dispute over the Isle of Man's commercial radio station. The British authorities granted Manx Radio a license but restricted its transmission power so that its broadcasts would not carry to the mainland and compete with radio stations subject to Britain's regulations. Citing its obligations to the International Telecommunications Union, the United Kingdom insisted on remaining the sole “authority to control the use of scarce frequencies in the United Kingdom and the Islands.”Footnote 54 Another example was the debate, just before the birching case began, about the future of the island's Usury Act. This was a legislative relic that capped interest rates and so prevented the Isle of Man, inside the Sterling Area but with a lot of regulatory independence from the United Kingdom, from realizing its potential as a tax haven.Footnote 55 At this time, Britain's Labour government was trying to crack down on tax avoidance; the Prime Minister, Harold Wilson, was lobbying Commonwealth leaders about tax havens.Footnote 56 Harris worried that if the British government did not defend the birching case, or gave the Isle of Man license to defend the case by itself, the United Kingdom would look to be shirking its responsibilities to the island and so encourage Tynwald to assert itself in other international fora. He worried that Jersey and Guernsey would draw the same conclusion: “Both the Isle of Man and the Channel Islands have been seeking to negotiate directly with the Commission of the EEC on several matters, including financial questions, and the Isle of Man with other international bodies on the broadcasting issue, on which we do not wish them to have direct access.”Footnote 57
Failure to defend birching before the European Commission of Human Rights would lead to other diplomatic challenges besides relations with international bodies. The Foreign and Commonwealth Office lawyer David Gordon-Smith reminded the Home Office that it was not just the Isle of Man and the Channel Islands that retained judicial corporal punishment. A dozen other British territories scattered around the world had laws providing for whipping as punishment for crimes: Belize, Bermuda, the Falkland Islands, Gibraltar, the Gilbert and Ellice Islands, Monserrat, St Helena, the Seychelles, the Turks and Caicos Islands, the British Virgin Islands, and perhaps Brunei and the West Indies Associated States (Antigua, Dominica, Grenada, St Kitts-Nevis, St Lucia, St Vincent). Most of these territories had small populations. Some, like Belize, Bermuda, Brunei, and the West Indies Associated States, were largely self-governing former colonies. Others fell into a different category of dependency from the three islands close to Great Britain. Differences in constitutional status aside, they were all subject to the European Convention on Human Rights. Gordon-Smith thought that “they might well take exception to being obliged to abolish it as a result of failure of HMG [Her Majesty's Government] to defend the Tyrer case.” The dependencies’ governments would at least expect to be consulted “before a decision having implications for them was taken.” Consulting a dozen other dependencies before deciding how to proceed with the Isle of Man case was surely not feasible. “If we defend the Tyrer case but lose, that would, of course, be different matter.” Gordon-Smith assumed that no one in the British government would want to “draw any distinction between its use in the Isle of Man and other territories,” that is, to say that what was unacceptable in the Isle of Man was permissible in the Seychelles. British officials were embarrassed about not conforming to the standards of Western Europe, and they were not about to reinstate a sliding scale of “civilization” in what remained of the empire.Footnote 58
Thus, the Foreign Office and the Home Office agreed that politically the best course of action was for the British government to defend birching before the European Commission of Human Rights, and then direct Tynwald to abolish birching if the United Kingdom lost the case.Footnote 59 The two departments wanted to fight the case solely on the grounds of Article 3, whether birching constituted degrading punishment. The Home Office resolved to try to get the complaint under Article 14, that birching was discriminatory, dismissed. “If we concede admissibility on the ground that corporal punishment is discriminatory, because it is pronounced primarily on the poor and socially deprived, the same argument could very easily brought forward in relation to imprisonment, and indeed in relation to almost the whole of the penal system and the criminal process (road traffic offences apart).”Footnote 60 (The idea of speeding fines as a zone of equality is a sign of how far Britain had come from the days when only the wealthy owned cars and dangerous driving was scarcely criminalized.)Footnote 61 As we have seen, interference with Britain's treatment of prisoners was one of the main reasons the Heath government considered withdrawing from the jurisdiction of the European Commission of Human Rights in 1972. As it turned out, both Hays and Tyrer withdrew their Article 14 complaints in the middle of 1974.Footnote 62 The case at Strasbourg would now turn entirely on whether birching was degrading.
In the end, Silkin decided that it was an arguable question whether birching violated Article 3, and as such the United Kingdom should take it to the commission. Jenkins, Harris, and Roy Hattersley—the minister of state at the Foreign and Commonwealth Office, so deputy to the foreign secretary—wanted the British government's legal team to appear alongside the attorney general for the Isle of Man, and leave the substance of the argument to him. This way, they reasoned, the British government would avoid the embarrassment of arguing in favor of a punishment that was banned on the mainland.Footnote 63 There were, Jenkins told Silkin, “strong presentational reasons” for getting the island's own attorney general to take the lead.Footnote 64 Silkin did not accept this argument, which, as Gordon-Smith at the Foreign Office noted, “suggests some continuing confusion between arguing that birching is sound penal policy and arguing that it is not inhuman or degrading within the meaning of the Convention.”Footnote 65 Silkin continued to object to Jenkins’ and the others’ demand to put political and “presentational” considerations before what Silkin regarded as strictly legal issues, but he lost. The attorney general for the Isle of Man would present the case in tandem with a barrister from outside the civil service representing the United Kingdom.
III
These strategic deliberations took place in 1974–1975. It would be another two years before the European Commission of Human Rights heard the matter, and in that time opponents and defenders of birching mobilized. Angela Kneale, the island's leading anti-birching campaigner, does not seem to have been involved in the legal proceedings, though the NCCL published her tract, Against Birching (supposedly with money from an anonymous benefactor on the island), to coincide with the Tyrer and Hays’ petition to Strasbourg, and Grant cited it in submissions.Footnote 66 Peggy Irving emerged as the most prominent defender of birching outside Manx government circles. Irving was the Isle of Man branch organizer for the National Association for Freedom, a hub of the new right-wing activism in 1970s Britain. The association's leaders launched litigation and direct-action campaigns to thwart strikes and tried to block British membership of the European Economic Community.Footnote 67 Speaking to Independent Television's Tonight in 1978, Irving described birching as a short, sharp lesson, more effective than a prison sentence that was a drain on the taxpayer.Footnote 68 Irving contacted the NAFF's head office, which advised her that it would be useful to gather evidence that a majority on the island wanted to keep the birch.Footnote 69 A petition in support of birching had attracted the signatures of a third of the island's population; Irving started a new petition that ended up getting 30,000 signatories out of the island's 45,000 voters.Footnote 70 The island's attorney general would take it with him to Strasbourg.
Hays withdrew before the oral hearing before the European Commission of Human Rights in October 1975. Tyrer was represented by Nigel Rodley, legal officer at Amnesty International (although acting in a private capacity), and Bill Nash of the NCCL.Footnote 71 (Nash replaced Lawrence Grant as NCCL legal officer when Grant moved to the Law Clinic at the new University of Kent at Canterbury.)Footnote 72 Completing the legal team was Cedric Thornberry, who, as a member of the Society of Labour Lawyers, worked on antidiscrimination law and the conditions of political prisoners in Northern Ireland. Thornberry represented many complainants in Britain's early human rights cases in Strasbourg.Footnote 73 The British government was represented by Gordon-Smith of the Foreign Office, lawyers from the Home Office and the Treasury Solicitor's Department, and the attorney general of the Isle of Man, J. W. Corrin.
IV
As Gordon-Smith had observed earlier, there was a dearth of case law on the meaning of “degrading” in Article 3 of the European Convention on Human Rights.Footnote 74 The distinction between “torture,” “inhuman,” and “degrading” in that article had been considered by the commission in a series of cases against the Greek junta brought by Denmark, Sweden, Norway, and the Netherlands in 1967. The commission established a hierarchy in which “degrading treatment” was the least restrictive and the least severe. “Treatment or punishment of an individual may be said to be degrading if it grossly humiliates him before others or drives him to act against his will or conscience,” the commission had declared.Footnote 75 The commission had considered the scope of “degrading” treatment in another case involving the United Kingdom. The East African Asians case concerned the government's restriction of the right of South Asians expelled from Kenya and Uganda to enter and remain in Britain despite bring British passport-holders.Footnote 76 The applicants in the East African Asians case “submit[ed] that the British authorities, by refusing to admit them to the United Kingdom or to allow them to stay there permanently, reduced them to the status of second-class citizens. This degradation, which was based on their colour or race, amounted to ‘degrading treatment’ in the sense of Article 3.”Footnote 77 The majority on the commission agreed, finding that degrading treatment was not confined to physical acts.Footnote 78 In the East African Asians case, the commission placed special weight on considerations of racial discrimination and citizenship, neither of which were factors in Tyrer. Despite the thinness of the case law, a majority of the commission hearing the Isle of Man case seems to have found the question of degrading treatment straightforward.
“Judicial birching humiliates and disgraces the offender,” wrote the majority, “and can therefore be said to be degrading treatment or punishment. This is particularly evident in the procedure used for birching in the present case, including the pact that persons aged between 14 and 21 years of age have to strip off their trousers when being birched.” The Manx authorities’ contention that birching acted as a deterrent was the only justification offered. The commission thought that the deterrent value of corporal punishment was disproved by reports commissioned by the British government itself in the past, including the Cadogan Report of 1938 and the Barry Report of 1960, both of which Tyrer's NCCL lawyer quoted at length in his written submission.Footnote 79 The commission declined to consider the Article 14 claim that sentences were passed in a discriminatory way, and sent the Article 3 complaint on to the European Court of Human Rights for a definitive ruling.
One commissioner dissented. Kevin Mangan, the commissioner from the Republic of Ireland, said he had been strapped at school and slapped by his parents and he did not consider these punishments degrading. Mangan had a substantive argument as well. “The earlier terms with which ‘degrading’ is associated in Article 3 … (‘torture’ or ‘inhumanity’) reflect the concern which moved the framers of the Convention in the post World-War-Two era.” Birching did not have the gravity contemplated by the framers of Article 3, Mangan thought. Mangan also read the Cadogan and Barry reports as finding that the deterrent value of corporal punishment was “not proven”—not that they concluded it did not actually work. Mangan also disagreed with the majority that the local traditions of the Isle of Man were sufficiently different from those of the UK as to warrant allowances under Article 63(3) of the Convention.Footnote 80
Three months after the commission hearing, Tyrer too decided to withdraw. The commission “decided it could not accede to the applicant's demand since the case raised questions of a general character affecting the observance of the Convention which necessitated a further examination of the issues involved.”Footnote 81 The commission itself was the only party to put the case against the United Kingdom in the European Court of Human Rights. “Although the NCCL offered to present Tyrer's original argument in any way acceptable to the Court it was refused permission.”Footnote 82 The commission's principal delegate in the court hearing was Love Kellberg, who as head of the legal department of Sweden's foreign ministry had been instrumental in cases against the Colonels’ Greece a decade before.Footnote 83 While the British government had relied on civil service lawyers for the commission hearing, it instructed outside counsel for the court hearing. Remarkably, the Foreign Office selected Louis Blom-Cooper, who was used to challenging the government in human rights cases rather than defending it. Blom-Cooper had made his name suing prison authorities to force them recognize prisoners’ rights, and challenging death sentences imposed by colonies and dependencies that had not joined the United Kingdom in abolishing the death penalty for murder.Footnote 84 As had been decided, against Silkin's wishes, most of the work in court fell to Corrin, the Manx attorney general.Footnote 85
The six judges in the majority emphasized the importance of context in determining whether a punishment was “degrading.” They argued that birching was an “assault” on “a person's dignity and personal integrity.” In the same passage, they emphasized the “institutionalised character of this violence” and “the fact that those inflicting it were total strangers to the offender.”Footnote 86 Here the judges drew an implicit but clear distinction between punishment administered by the state and parents hitting their children, legal restrictions on which were still decades away.Footnote 87 The judges were mindful of a larger context as well: the Convention was “a living instrument” and the Court “cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field.” The judges considered and dismissed Corrin's arguments about procedural safeguards and found birching to be degrading within the meaning of Article 3.Footnote 88
Corrin submitted further that public opinion on the Isle of Man, as indicated by the petition in support of birching and a debate in the House of Keys, the lower house of the Manx parliament, warranted making an exception for the island under Article 63 of the Convention. This article provided that states that ratified the Convention could extend it “to all or any of the territories for whose international relations it is responsible”—with the rider that it “shall be applied in such territories with due regard, however, to local requirements.” Kellberg, representing the commission, responded that “no specific local conditions” had been pointed to, just public opinion.Footnote 89 Agreeing with Kellberg, the majority “note[d] … that the Attorney-General for the Isle of Man spoke more of circumstances and conditions than of requirements in the Island,” and only requirements could justify an exception to the rights guaranteed by the Convention. Again invoking the broader European context, the court noted that “the great majority of the member States of the Council of Europe” did not use judicial corporal punishment, which “casts doubt on whether the availability of this penalty is a requirement for the maintenance of law and order in a European country.” The reference to Europe was significant: the court stated that the proviso allowing for exception according to “local requirements” was “primarily designed to meet the fact that, when the Convention was drafted, there were still certain colonial territories whose state of civilisation, it was thought, did not permit the full application of the Convention.” The Isle of Man was no such colonial territory: “Historically, geographically and culturally, the Island has always been included in the European family of nations and must be regarded as sharing fully that ‘common heritage of political traditions, ideals, freedom and the rule of law’ to which the Preamble to the Convention refers.”Footnote 90
Again there was one dissenting judge. The Strasbourg bench had to include a judge from the state being challenged, and the dissenter in the birching case was the British appointee, the distinguished international lawyer Sir Gerald Fitzmaurice (who had been a legal advisor at the Foreign Office when the Universal Declaration on Human Rights and the European Convention were drafted).Footnote 91 Fitzmaurice argued that juveniles had always been punished differently from adults. While “[m]odern opinion” had moved against corporal punishment, as the majority said, “it has not been generally regarded as degrading when applied to juveniles and young offenders, in the same way as it is considered so to be in the case of adults.” Fitzmaurice suggested that the difference was “an extension of the attitude that does not consider young persons as susceptible of offence in the same manner or degree as adults, so that a measure of freedom of speech or action is felt to be permissible in the one case that would not be in the other.”Footnote 92 Like Mangan, Fitzmaurice pointed to his own benign experience of corporal punishment. He ostentatiously evoked the atmosphere of the boys’ boarding schools that were so important in the socialization of Britain's elite: “it was often considered by the boy himself as preferable to probable alternative punishments such as being kept in on a fine summer's evening to copy out 500 lines or learn several pages of Shakespeare or Virgil by heart.” The beatings Fitzmaurice experienced and witnessed at Malvern College “were carried out without any of the safeguards attendant on Mr. Tyrer's: no parents, nurses or doctors were ever present. They also not infrequently took place under conditions of far greater intrinsic humiliation than in his case. Yet I cannot remember that any boy felt degraded or debased.”Footnote 93 Fitzmaurice notwithstanding, the court had found birching to be a violation of the European Convention on Human Rights.
V
The British government took the view that the minimum it needed to do to comply with the court's ruling was to ensure that no further birchings took place: it would be acceptable if the law remained on the books but was not enforced.Footnote 94 Angela Kneale told the press she would be happy with that outcome.Footnote 95 So, rather than inviting a confrontation by asking the Manx government to rescind the directive on birching, the British government relied on the island's judge of appeal to overturn any birching sentence passed by a local magistrate.Footnote 96 (The judge of appeal was appointed by the Crown and had to be a member of the English bar; the position was often combined with part-time judgeships in the north-east of England.) There was defiant talk in Tynwald, and pro-birching women marched on the building and packed the public gallery, but the legislature backed down from a confrontation with the British government and deferred the question of birching to a select committee.Footnote 97 Seven months later, in June of 1979, the select committee reported in favor of keeping the birch. Legislators spoke of asking the British government to secure a carve-out from the Convention for the Isle of Man, or, failing that, introducing a Manx bill of rights that would allow birching (the new Conservative government led by Margaret Thatcher was promoting a United Kingdom bill of rights at the time).Footnote 98 The Manx government had already ensured that there would be no further human rights cases initiated by residents of the Isle of Man. When the British government renewed the right of individual petition to the European Commission of Human Rights for another five years beginning in January 1976, the island's executive council asked the Home Office not to include the island, and the right of individual petition from the Isle of Man lapsed.Footnote 99 At least in theory, however, the island's laws and practices remained subject to the European Convention on Human Rights.Footnote 100
The Manx government followed through and sent the Home Office a draft Fundamental Liberties Bill at the beginning of 1980. In fact, the Fundamental Liberties Bill was not a human rights instrument, for it neither codified the wider array of freedoms found in international treaties nor guaranteed “fundamental liberties” to all persons on its territory. The bill pointedly did not include any prohibition of torture or other provision found in Article 3 of the European Convention; it also permitted discrimination against those who were not of “Manx status.”Footnote 101 When officials at the Home Office pointed this out, the Manx government inserted the language of Article 3 into the bill with an accompanying clause that rendered this provision all but meaningless.Footnote 102 The Home Office resolved to delay the bill and head off any suggestion that its adoption would be accompanied by a denunciation of the European Convention.Footnote 103 In subsequent drafts, the Manx government continued to try to incorporate the European Convention into Manx law in a way that justified limiting Strasbourg's jurisdiction over the island. As one Home Office lawyer wrote in a March 1981 memorandum, “It is clear to me what the Manx are up to, although they do not say so and I suspect we cannot press them to say so, is that their Bill should be amended in Tynwald so as to disapply the proscription of judicial corporal punishment. They would then ask us to denounce the Convention. It clear to me that we must refuse to denounce the Convention.”Footnote 104 Accordingly, the Manx proposals went nowhere.
Two years later, most members of the House of Keys continued to support birching, but “the Manx government is believed to consider its resumption untenable.”Footnote 105 The issue flared up again in the summer of 1981 when a magistrate sentenced a sixteen-year-old visitor from Glasgow to four strokes of the birch for slashing another youth with a broken beer glass. The (English) judge of appeal, Benet Hytner, quashed the sentence and recommended a custodial sentence instead. He stressed that carrying out a sentence of birching “would render the United Kingdom and the Isle of Man in breach of international treaty obligation.” Hytner rebuked the British and Manx governments more than the magistrates. While the birching law remained valid, “either the United Kingdom and Manx governments are unconcerned about the possibility of their respective countries being in breach of their international treaty obligations, or they are depending on the courts of the Isle of Man always so to exercise their discretion not to pass (or to vary) perfectly lawful and valid sentences as to extricate them from the consequences of inaction.”Footnote 106 There were no more birchings after Hytner's decision. The power to order birching was formally curtailed in 1993 and eventually abolished completely as late as 2001.Footnote 107
VI
The senior politicians involved, like the civil servants, tended not to discuss the issue in moral terms, but rather in terms of legal and international obligations. For some, this low-affect approach was temperamental. It may also have reflected a recognition that there was some level of public support for birching in Great Britain as well as on the Isle of Man. The Conservative backbencher Graham Page introduced a private member's bill to “bring back the birch” in Britain itself for “vandals, hooligans, and muggers.” All three criminal types were usually envisioned as young men. Page argued that birching was analogous to the physical chastisement of children in the home, which was still not subject to serious political or legal challenge. Page claimed to have popular sentiment on his side, pointing out that over a million Britons had signed a petition in support of his bill and that a recent survey of pensioners showed that “old people are particularly frightened” of falling victim to violent crime.Footnote 108 Page's bill was easily defeated by the government, as bills initiated by backbench MPs usually were. Significantly, the minister responsible for killing the bill during debate in the House of Commons focused on whether birching was an effective deterrent to juvenile crime rather than on moral and legal considerations.Footnote 109
In contrast, campaigners and the talking heads and ordinary citizens whom the media gave space to in its coverage of the birching controversy discussed the issue in more expansive terms. Opponents routinely described the practice as barbaric and its prohibition a marker of civilized norms.Footnote 110 Birching's defenders turned these civilizational tropes on their head. “The most barbarous aspect of society to-day is the growing number of brutal, unprovoked attacks on long-suffering citizens,” asserted a reader of the Liverpool Echo in defense of the birch.Footnote 111 It was criminals, and especially juvenile offenders, who were the forces of barbarism, not the state that punished them. Young black men were central to the “mugging” panic that underwrote a Conservative politics of “law and order” over the course of the 1970s.Footnote 112 The Sunday Telegraph editor Peregrine Worsthorne, a dependable soldier for the New Right, wrote that the European Court of Human Rights handed down its decision in Tyrer on the same day that “a gang of 12-year old monsters … tortured an old woman into handing over her pension.” “As life in the cities grows ever more coarse-grained and barbaric, the language of public discourse grows ever more lofty.”Footnote 113 A letter to The Times echoed this sentiment, suggesting that the “liberal conscience” of “Strasbourg judges” had “coincided with the horrifying increase in the rate of juvenile crime and violence.” Another “reflect[ed] upon the irony of a process by which a humane and highly sophisticated civilization is reduced by its own peculiar logic to compound with barbarism.”Footnote 114
The expectation that an international court's decision would be less provocative than a directive from London proved ill-founded. Critics of European Economic Community membership such as the Scottish Conservative MP Teddy Taylor described the court's decision as interfering with Britain's sovereignty.Footnote 115 Enoch Powell, who had been the most prominent right-wing opponent of EEC membership on sovereignty grounds, asked rhetorically in parliament: “Is not the effect of the United Kingdom's adherence to the European Convention on Human Rights to alter the constitutional relationship between the United Kingdom and the Isle of Man in respect of the internal affairs of the Isle of Man?”Footnote 116 Pro-birchers threatened to declare independence from “Westminster, Brussels and Strasbourg.”Footnote 117 Lumping the Economic European Community together with the European Court of Human Rights would become standard in British Euroskepticism; Peggy Irving and her fellow campaigners on the Isle of Man added the UK government at Westminster too.Footnote 118
VII
The task of persuading the governments of Britain's “dependent territories” dragged on for more than a decade. By the early 1980s, most of the remaining dependent territories were in the Caribbean, but the Falkland Islands, over which Britain fought a war with Argentina in 1982, also fell into this category, and so, between 1981 and 1997, did Hong Kong. Hong Kong, the Falklands, and most of the Caribbean dependencies had flogging laws. For the most part, these laws remained “dormant.” Only in the British Virgin Islands did the courts regularly sentence convicted defendants to flogging.Footnote 119
By the late 1980s, Britain's human rights obligations to the United Nations had become more important than its obligations under the European Convention on Human Rights in the ongoing negotiations over corporal punishment in the parts of the Commonwealth for which Westminster still had the authority to legislate. Every five years, the British government had to report to the UN on its progress in meeting its commitments under the International Covenant on Civil and Political Rights. The UN's Human Rights Committee “made clear during their examination of … [Britain's] First and Second Reports that they consider judicial corporal punishment in the DTs to be incompatible with Article 7 of the Covenant.” Article 7 proscribed torture and “cruel, inhuman or degrading treatment or punishment”—language that overlapped with the wording of Article 3 of the European Convention on Human Rights. “In Geneva in November 1988 they said that the British Government should use its good offices to have it abolished in the DTs where it was still on the statute books.” The Foreign and Commonwealth Office also noted that the new UN Committee against Torture “will regard … [judicial corporal punishment] as incompatible with the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment and will devote more time to its consideration than the Human Rights Committee does.”Footnote 120 As the October 1989 submission date for the United Kingdom's third report loomed, the Foreign Office renewed its efforts to get the dependencies to abolish judicial corporal punishment.
Politicians in the dependencies were not enthusiastic about starting a fight over an issue extraneous to their own political struggles. In the Caribbean, there was a high level of public support for keeping flogging on the statute books even if only as a latent threat.Footnote 121 Jamaica, Trinidad, and most of the other independent states in the Caribbean retained corporal punishment, and these independent states were obvious reference points for the British dependencies.Footnote 122 British officials in Bermuda also worried that raising the issue of corporal punishment would derail the campaign to abolish capital punishment, which was a much more pressing human rights concern.Footnote 123 Bermuda's attorney general, a Canadian, suggested that after the capital punishment referendum, the Foreign Office should write to the governor saying that corporal punishment “must be abolished because of Bermuda's international obligations. This would give the government of Bermuda an excuse to say they had been forced to abolish it.”Footnote 124 The attorney general's approach left Bermuda's Deputy Governor “somewhat uneasy given its potential to reopen the independence debate.”Footnote 125
Montserrat's (British) Governor, Christopher Turner, pressed the island's ministers to end judicial corporal punishment on the grounds that it threatened Montserrat's status as a civilized country. “In retaining this penalty Montserrat is out of line with most civilised states which have the same standards as ourselves … . Council would wish to avoid the potential embarrassment of Montserrat being seen as an unenlightened island which retains a punishment which many countries regard as barbaric and dehumanising.” As we have seen, the European Court of Human Rights itself described the rejection of physical punishment as a sign of civilization and thus membership of “the European family,” and activists in Britain were quick to couch the issue in terms of civilization and barbarism, though ministers and civil servants steered clear of this language in their dealings with the Isle of Man. While Turner invoked civilization in his effort to persuade Montserrat's elected politicians, he was also not above presenting the defense of human rights as an unfortunate irritant: “There is a danger of unhelpful publicity from some human rights group taking up a case and our having to change our laws in as a result of outside pressure.”Footnote 126 The Executive Council agreed and the Foreign Office celebrated: Montserrat's decision was made in time for the news to be included in the United Kingdom's third report to the United Nations’ Human Rights Committee. And then the opposition in Montserrat's Legislative Council resisted abolition and the executive put it “on ice.”Footnote 127 By the late 1990s, Montserrat and every other British overseas territory other than the British Virgin Islands had abolished judicial corporal punishment, by which time the United Nations Human Rights Committee had ceased to probe the United Kingdom on the issue.Footnote 128
Montserrat is a long way from the Isle of Man, and the whip, as an emblem of slavery, could hardly be defended as a local tradition in the Caribbean as the birch was on the Isle of Man. It is striking that Bermuda's attorney general thought that the way to get the territory's government to abolish corporal punishment was for the United Kingdom to tell them they had to because of Britain's human rights obligations, combining two kinds of external pressure, whereas the Foreign Office had thought that the message would be more palatable coming from an international human rights body than from London. It turned out that both kinds of external pressure were objectionable, and that on the Isle of Man, at least, they could be conflated, with “Brussels” thrown in as well. Even in its dealings with a territory the size of Montserrat, with its population of about 10,000, the British government had to coax rather than give orders. Attempting to exercise the powers, the United Kingdom formally possessed risked pushing overseas territories toward independence. Officials were well aware that their government's powers could dissolve upon use.Footnote 129 In the nineteenth century, Walter Bagehot drew a famous distinction between the British constitution's “dignified” part (the ceremonial, the mythology of the Crown) and its “efficient” or functional part.Footnote 130 The British government's dealings with its dependencies over the issue of corporal punishment suggest that, at least in the advanced stages of decolonization, the “efficient” aspect of government as well as the “dignified” was, on some level, a collaborative fiction.
Acknowledgements
We thank Raluca Oprean and Lauren Theweneit for research assistance. This research was supported by funding from the Faculty of Arts and Social Sciences and the School of Humanities at the University of Sydney.
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