International Liberal Norms and Mature
Democracies
The dissemination of international liberal norms has been a central
question in the study of democratization, liberalization and international
law generally for some time. By norm, I mean any principle or rule that
governs whether behaviour is appropriate. The debate has focused on
competition between rational choice and sociological explanations,
particularly for countries in transition (Finnemore,
1996; Finnemore and Sikkink, 1998; Risse et al., 1999; Boyle and Preves, 2000; Weisband, 2000; Checkel,
2001; Johnston, 2001; Pevehouse, 2002; Kelley,
2004). For most, a stage theory has emerged as the most promising
framework, with an acknowledgement that at early stages, state interests
and strategy predominate, while at later stages socialization factors
feature more prominently (see especially Finnemore and
Sikkink, 1998; Risse et al., 1999).
Ultimately, the dependent variable for all of these theories is the
internalization of the international norm—a sort of end-state of
harmony between the target and source of the norm. Perhaps in part because
of this lack of dramatic change, scholars of norm dissemination have
generally neglected this last phase, leaving it to scholars of domestic
politics and international relations to address it (Evans et al., 1993; Risse and
Sikkink, 1999: 33).
In this research, I would like to probe whether the logic and dynamic
of norm-dissemination theories, aimed at explaining earlier stages of the
process, can also be useful in explaining shifts in policy and attitudes
in mature democracies in connection with international norms. In
particular, I am interested in whether variance with respect to the
content of the norm and variance with respect to the target audience
affect patterns in international norm internalization. Ultimately, I ask
whether it is possible to predict the effects of concerted efforts by
international actors to disseminate international norms on changes in
policy and attitude by both elites and masses in mature democracies.
In this preliminary study, I find that understanding calculations of
interest and strategy are necessary to explain norm dissemination in
mature democracies, particularly where international norms challenge
policies aimed at addressing national security concerns or where the norm
is extremely unpopular. This is true in spite of the fact that
international institutions often lack the capacity to force compliance.
Further, I find that international institutions are unlikely to affect
public opinion on the norm, even where its activities have received
relatively broad coverage in the press and awareness and approval are
relatively high in the target society. One implication is that the
supposed “end state” of norm internalization does not really
exist, but decisions about internalizing norms are ongoing and under
constant review, even in mature democracies. Further, this study makes it
clear that policy shift as a dependent variable does not truly measure the
deeper phenomenon of norm internalization, especially where the mass
public is concerned. This in turn raises important policy questions
regarding the ideal mechanisms for norm dissemination.
In most studies of attitude shift in mature democracies, the place of
international agents is usually ignored or neglected (Inglehart, 1990, 1994),
unless the attitude in question relates directly to an international
institution, such as European attitudes about integration or regional
monetary policy (Gabel, 1998). This stems from
the fact that where numerous forces are in play to influence attitudes
(economic trends and conditions, political culture and traditions and the
specific actions of political parties, interest groups, the press,
churches, to name a few), international actors are often rather quiet in
comparison (Caldeira and Gibson, 1995). Further,
the weakness of most international institutions limits their capacity to
apply pressure on mature states to change their policies.
There are, however, a few cases where international actors are in fact
powerful and vocal enough to grab the attention of both policy elites and
the masses in mature democracies. In Europe, for example, the EU
institutions have clearly matured to achieve this level of influence. The
same may be said of the European Court of Human Rights (hereafter the ECHR
or “the Court”), headquartered in Strasbourg, which now rules
regularly on individual petitions from 50 member-states on a wide range of
human rights questions. By intervening on a case-by-case basis, the Court
can render precise and specific judgments that inform a state when it is
in violation of the European Convention on Human Rights and Basic Freedoms
(hereafter “the Convention”). The result has been changes in
national legislation in almost all states thus targeted, in spite of
popular and elite opposition (Jackson, 1997;
Moravscik, 2000).
This has been especially true in the United Kingdom, which has been a
member of the Council of Europe since 1950 and a strong supporter of the
ECHR (Blackburn, 2002). Over the years, British
policies have been found to be in violation of the Convention more than 50
times. These policies related to a wide range of key issues, including the
rights of immigrants, police powers, the legal status of gays, corporal
punishment of children and privacy rights of those targeted by the press.
In almost all cases, the Court's rulings came following many years of
highly publicized trials and appeals in British courts. Many have involved
key government officials or pop-culture celebrities and have received wide
attention in the press, sometimes to the profound embarrassment of the
sitting government. The case of the UK before the ECHR therefore
represents a promising opportunity to study the effects of efforts by
international institutions to disseminate international norms on the elite
and masses of mature democracies.
Theories of Norm Dissemination
As mentioned above, theories of international norm dissemination have
generally addressed the ontological question of whether rational choice or
socialization models are more useful. In what has been a perhaps
surprising turn of events, there is now general agreement that, depending
on the stage of the dissemination process (which is generally assumed to
last several decades for most countries), both approaches may be useful.
In what is perhaps the most clear and comprehensive model, dealing
specifically with human rights norms, Risse and Sikkink define five stages
through which a deviant state will pass on its way to norm compliance.
Under the initial stage, the state engages in repression of its citizens
in defiance of international norms. It does so for the instrumental reason
that state survival depends on minimizing participation and is undeterred
by international human rights networks' efforts to bring the actions
to the world's attention. However, these efforts are sometimes
successful, forcing the state to deny that its behaviour violates the norm
(phase two). This is done, again, for instrumental reasons. As a domestic
opposition succeeds in linking with transnational actors, the state may
feel it necessary, again for the sake of regime survival, to make tactical
concessions (phase three). At this point, it may engage in rhetorical
action and argumentation in order to justify deviant actions, as well as
offering genuine reforms. The next stage involves a general acceptance of
the validity of the norm (prescriptive status), in spite of continued
limited non-compliance. At this stage, arguments about the norm are less
contingent and tactical but instead address the norm qua norm. Finally,
the state accepts the norm in the fullest sense by complying with it. The
key point in this model is that where strategic calculations based on
regime interests dominate the early stages of norm dissemination, later on
the logic shifts to argumentation (persuasion and debate) and
socialization (peer pressure, reputational concerns, etc.).
Recent work on norm dissemination echoes and refines this causal
sequence. It is generally agreed that international norms are ignored if
there are no threats of sanction or inducements. These incentives and
threats seem to induce change in authoritarian regimes, especially with
respect to their discourse (Hawkins, 1997).
These incentives are also important to new democracies seeking regime
consolidation (Moravcsik, 2000; Pevehouse, 2002) or acceptance by the broader Western
community (Kelley, 2004). On the other hand,
more established democracies are more amenable to subtler methods of
persuasion, such as peer pressure (Finnemore,
1996; Checkel, 2001), argumentation
(Johnston, 2001) and approval (Weisband, 2000). This is consistent with conventional
theories of attitude change found in psychology and sociology (Zimbardo and Leippe, 1991). International courts are
in a unique position to apply these sorts of pressures (Alter, 1998, 2003), as are international networks of jurists
and lawyers (Slaughter, 2004).
In this paper, I propose that this sequencing is too simplistic, and
that in certain circumstances, policy elites, even in mature democracies
where issues of human rights are concerned, may respond to inducements and
threats. This stems from a number of factors related mostly to
calculations of electoral costs and benefits. In mature democracies where
basic rights and freedoms are in place, human rights issues often involve
changes in standing and status for certain groups (homosexuals, the
unborn, religious minorities, refugees and immigrants, etc.). These issues
are often framed in political terms, with the result that a decision to
implement some new international norm is likely to meet with considerable
resistance and may well involve a substantial political cost to the
government (Tatlovich and Smith, 2003).
Governments must calculate to what extent the adoption of some new
international norm will affect their electoral base.
In addition, most human rights questions involve new limits on state
powers. Governments in power (that expect to remain so for the foreseeable
future) generally resist relinquishing powers that have served their
predecessors well or that might be called upon in periods of national
emergency, and so governments calculate the degree to which they can
delay, equivocate or obstruct implementation, especially if there are no
clear electoral advantages to the new norm (for example, it would not
appease protesters or enhance the regime's popularity). Governments
facing the possibility of domestic conflict will likely hold to strong
police powers far more than those enjoying domestic tranquility.
Finally, not all human rights norms derive from a single philosophical
orientation. Given the importance of ideology for many governments in
mature democracies, new human rights norms may come into conflict with the
governing party's priorities. An orthodox liberal ideology may cause
governments to resist norms to promote national health care, for example,
and a populist regime may resist expanding private property protection,
and so forth. Taken together, these factors indicate that we should look
more closely at the dynamics of norm implementation in “stage
5,” since it is likely to be far more contentious and indeterminate
than the Risse/Sikkink model would have us believe.
On the second key question for this research, the effects of norm
dissemination on public attitudes, the Risse/Sikkink model assumes a
disconnect between the state and society in the early stages. However, the
general assumption is that those people who are oppressed by the state are
united in their advocacy of liberal reforms (in opposition to the
state's desire to retain repressive measures). Over time, it is
generally assumed that the state will abandon its repressive policies and
attitudes and come to embrace human rights norms, thereby bringing the
state into agreement with society. A growing body of literature casts
doubt on this basic premise and argues instead that states may, in fact,
lead their societies in accepting liberal norms (Hawkins, 1997). Perhaps the most telling work on the
subject was done by Kelley (2004) on African
attitudes regarding female circumcision and Eastern European attitudes on
immigration policy, respectively. In each case, the authors found that
state elites were remarkably responsive to international norms and adopted
numerous reforms to bring national legislation and policy into conformity.
But also in each case, publics resisted the changes, sometimes maintaining
old, offending practices in defiance of new laws. In Austria, for example,
xenophobic parties have performed very well at the polls, in spite of
their advocacy for policies that appear to violate both international and
domestic guarantees (Flockhart, 2001). In India
and China, selective abortions of female fetuses are widespread in spite
of international and domestic rules prohibiting the practice (Hudson and den Boer, 2004). In other words, although
it is reasonable to think that states are responsive to their publics,
there is anecdotal evidence that they are not, and in fact force reforms
on a resistant populace.
Since international human rights norms are progressive in their
substance, we can ask what contributes to mass support for progressive
reforms. The vast literature on public opinion trends in advanced
democracies tends to point to the following as key factors: education,
age, income, gender, ideology and religiosity. Those who are relatively
more educated, younger, female and secular are in general more inclined to
accept progressive ideas than those who are less educated, older, male and
church going (Moors, 2003; Inglehart, 1994; Davis,
2000; Guth and Green, 1990). In addition
to these demographic factors, it is clear that most people seek
attitudinal consistency and that those who are already progressive in
their ideological orientation will tend to accept a new norm if it is also
seen to be progressive (Sniderman et al., 1991).
Finally, there are some who argue that having a personal bond to the
source of the norm, whether instrumental or social or both, will enhance
the willingness of an individual to accept a new norm from that source.
“Primary groups”—consisting of immediate family,
neighbourhood friends, racial and ethnic groups, etc.—can have a
profound influence on our attitudes, as can those actors for whom we feel
affection and approval (likeability). Thus the attitudes of one individual
tend to mirror those of close family members, popular public figures
and/or revered institutions (for work on primary groups, see Doise and Staerkle, 2002: 152; for work on
likeability, see Kuklinksi and Hurley, 1994). In
the next section, I propose a number of tests to determine the extent to
which each of these factors plays a role in shaping attitudes.
In sum, the literature points to conflicting possibilities with
respect to the effects of international norms on elites and masses in
mature democracies. While the findings of this study will not be
definitive, I hope to explore these competing hypotheses in order to
articulate a tentative approach to the question. Ultimately, I hope to
answer the question: “What is going on in phase 5?”
Method
I have focused on the willingness of elites and masses in the UK to
accept and implement international human rights norms as articulated by
the European Court of Human Rights (“the Court,” or ECHR). The
UK is clearly a mature democracy (it is certainly one of the oldest and
the most resilient) and fits squarely in “phase five” of the
Risse/Sikkink model. One could argue that it is the archetype of the
phase-five democracy, having long ago resolved the fundamental debates
over governance principles in favour of progressive parliamentary
democracy. Further, Great Britain has been the source of many of the
international human rights norms that have developed over the past two
centuries, whether it be the ban on slavery, the right to free and fair
elections, the right to jury trial, or freedom of the press. The European
Convention on Human Rights and Fundamental Freedoms, which gave rise to
the European Court of Human Rights, was largely a British creation (Simpson, 2001).
At the same time, looking at the past 20 years of British civil rights
litigation, we find that the country has frequently been at odds with the
Court. Issues have ranged from the right of the press to divulge
government secrets to limits on a parent's right to discipline
children to the inclusion of homosexuals in the military. There has been
considerable variance on the key factors that interest us here. The
British government underwent a dramatic change in 1997 with the Labour
party's victory on a human rights platform. The reaction of various
UK governments to ECHR rulings has ranged from enthusiastic endorsement to
grudging capitulation. Some issues have created considerable stir among
the populace, leading to consequences at the polls, while others were
accepted without a murmur. In general, the Court has been a fairly visible
player in British politics in recent years, although the effects of its
decisions have varied dramatically. Thus it serves as a very useful case
through which we will explore the usefulness of these various
hypotheses.
To measure elite attitudes, I use formal government responses to ECHR
rulings, including statements from 10 Downing Street, debate and voting
records from both houses of Parliament, Whitehall policy papers and
various Court rulings. These are found in official government documents,
law reviews and in the press. I specifically have looked for references to
ECHR rulings and the substance of the European Convention on Human Rights
to determine whether these were taken as guides to policy reform, and
whether the reforms were reluctant or welcome. I followed up this
documentary research with personal interviews in London with policy elites
in the executive, legislative and judicial branches during the month of
June 2004.
To measure mass attitudes, a weighted quota sample telephone survey of
2031 UK residents was conducted. The survey took place on December
15–18, 2003 and has a sampling error of +/− 3.1 per cent.
The survey included only a limited number of questions, given resource
constraints. It was designed as an experiment involving the manipulation
of the preface to a question asking respondents their opinions on the
three issue areas mentioned above. I asked one cohort (N = 1017) its
opinion without any special prompt, while the other cohort (N = 968) was
specifically informed of the ECHR's rulings first. This was designed
to measure the effect of the respondent's awareness of the
Court's preferences on attitudes, as found in Sniderman et al., 1991. The questions are reproduced
in Tables 4, 5, 7 and 9. Note that this method does not require
substantial background information on the part of the respondent—a
vague or even flawed impression of the cue will still generate useful
information.
I also analyze the British Social Attitudes Surveys going back to
1983.1
National Centre for Social Research,
British Social Attitudes Surveys, UK Data Archive, University of Essex,
Colchester. The National Centre can be reached at www.data-archive.ac.uk (September 22, 2005).
Complete datasets were generously made available to the author by the
National Centre for Social Research. This is the only annual survey of
British attitudes about a wide range of relevant social and legal issues,
including the three I've selected, that uses some of the same wording
over a long period. The survey has the virtues of using a very large
sample (up to 3,000 respondents in some years) and applying conventional
scientific sampling techniques. Conversely, most questions have not been
worded consistently or included in enough surveys to provide longitudinal
data amenable to statistical analysis. They can provide, at best, a
general impression of trends in attitudes, which can be compared
informally with events data as presented in the first section on elites.
In spite of these rather severe data limitations, it is possible to form
judgments, however tentative, with respect to the influence of the various
factors mentioned above.
The ECHR and the British Policy Elite
At this point, what sort of effect several ECHR cases in two
areas—privacy rights vs. police powers of inquiry and corporal
punishment of children—have had on British politics and society is
considered.
Privacy and Police Powers
In British constitutional tradition, privacy has often been ignored in
the interest of promoting law and order. As put by Singh and Strachan:
“In contrast to its constitutional and common law recognition in
America, the right to privacy was first ignored and then expressly
disavowed by the judiciary in England and Wales” (2002: 130). The authorities therefore always have the
benefit of the doubt in matters of collecting evidence, search-and-seizure
and so forth (Malone v. UK, ECHR, 1984: para. 33). It is not surprising,
then, that British policy has come under scrutiny at the Strasbourg Court,
where the right to privacy is enshrined in Article 8 of the
Convention.
Prior to the passage of the Police and Criminal Evidence Act of 1984
(PACE Act) and the 1985 Interception of Communications Act, there was no
systematic regulation of phone taps, mail intercepts and
surveillance—although any evidence thus obtained was not admissible
in court at any rate. Recommendations of a commission appointed by Labour
Prime Minister James Callaghan (implemented by Conservative Prime Minister
Margaret Thatcher—English 2004) combined
with an adverse Strasbourg Court decision (Malone v. UK, see Blackburn, 2002: 978) resulted in a clarification of
procedures, including the requirement of a magistrate's authorization
prior to the installation of listening devices. On the other hand, the
various reforms did little to restrict police powers of intrusion. Civil
rights lawyers criticized the Security Service Act for encouraging
violations of Article 8 upon passage (Ewing and Gearty,
1990: 185). This became clear in 1997 when the European Court ruled
against the UK in two more privacy cases. In another case involving
wire-tapping, a police officer's work and home phone were tapped in
an effort by local authorities to monitor the officer's calls in the
hope of disrupting a sex discrimination case she was mounting.
A number of scandals in the 1980s contributed to a growing sense that
power had become too concentrated in London in general and Whitehall and
the Home Office specifically. Tony Blair's Labour party campaigned in
1997 on a civil rights platform, promising a Bill of Rights—although
it is debatable whether the public weighed this more heavily than
Blair's simultaneous promises to get “tough on crime”
(Dunleavy et al., 2001: 19). At any rate, first
on the agenda was passage of a Human Rights Act that would incorporate the
European Convention, thereby allowing British judges to assess whether
Acts of Parliament were compliant (thus obviating the need for British
residents to go to Strasbourg to make the determination) (Fenwick, 2000). This, combined with the Regulation of
Investigatory Powers Act of 2000 (RIPA) was designed to put UK
citizens' rights above those of the police. As put by Home Minister
Jack Straw to the House of Commons:
[F]or the first time, the use of these techniques
[such as wiretapping] will be properly regulated by law and
externally supervised. That will serve to ensure that law enforcement and
other operations are consistent with the duties imposed on public
authorities by the European convention on human rights…. (March 6,
2000)
He reassured concerned MPs, both Labour and Conservative, that the
bill would pass muster in Strasbourg. Assurances to this effect were also
given by the government to the ECHR in connection with a string of cases
involving past violations of privacy under previous laws (Chalkley v. UK,
ECHR, 2003; P.G. and J.H. v. UK, ECH; P.G. and J.H. v. UK, ECH, 2001;
Armstrong v. UK, ECHR, 2002; Lewis v. UK, ECHR, 2003).
This said, there are those who worry that even the new law will fail
because judges need not approve wiretaps in every case (Ashworth and Strange, 2003: 141). Others lament the
fact that even as RIPA imposed rules on wiretaps, it permitted the
government sweeping new powers to intercept e-mails and call-phone
communications (Leigh and Norton-Taylor, 2002).
Set against the backdrop of the war against terror, including the passage
of the Anti-terrorism Crime and Security Act of 2001, which allows
indefinite detention of foreign terror suspects and arbitrary seizure of
suspected terrorists' assets, one could argue that the UK government
is taking two steps forward and one step back with respect to limiting
police powers to invade privacy (Binning, 2002).
The Anti-Terror Act was furthermore accompanied by a formal derogation
from Article 5 of the Convention, meaning that the state openly admitted
it was planning to violate the Convention for the foreseeable future.
There are many in legal and policy circles in Britain today who
believe that the decision to apply the Convention to the treatment of
criminals, especially through the formal incorporation of the Convention
by way of the Human Rights Act 1998, is something the Blair government
regrets doing. Home Secretary David Blunkett has said as much on several
occasions. Civil rights advocacy groups such as Liberty spend a great of
their time fighting the expansion of police powers (Chakrabarti, 2004).
With respect to theories of norm dissemination, it is clear that where
questions of terrorism are concerned, policy elites in Britain are willing
to set aside Convention restrictions, both formally and informally. This
stems from a strong commitment to public safety and a perception of
significant threat (perhaps less defensible today than during the 1970s).
This is more consistent with the dynamic predicted for states in earlier
stages of norm dissemination, particularly the third stage of tactical
compromise. It appears as though many basic provisions of the Convention
(as interpreted by the ECHR) have yet to achieve a “taken for
granted” status in spite of Britain's long-standing commitment
to both the Convention and to civil liberties in general. That said, it is
also clear that the UK policy elites are responsive to a variety of
countervailing pressures, including ECHR judgments, the British courts
(note the recent judgment by the Law Lords prohibiting indefinite
detention of Arabs, HRW, 2004), interest groups
and some segments of the public.
Corporal Punishment of Children
For centuries, Britain had a policy of encouraging corporal punishment
of children at home, at school and even in the courts. This attitude has
gradually softened, however, in part due to pressure from the ECHR. In
1861, laws forbidding parents to abuse their children were introduced,
although they were explicitly permitted to use force as a
“reasonable chastisement.”
Beginning in 1979, a series of ECHR rulings prompted a number of
relatively minor revisions to British law. Britain undertook legal reforms
to bring its statutes into compliance with the progressively stricter
standards. In 1986, caning and leather straps were outlawed in state-run
schools, and in 1998 the same rule was extended to privately operated
schools. By the time this last law passed, the consensus among MPs was
quite broad. As explained by Baroness Nora R. David in her address to the
House of Lords:
It is over 10 years since a series of votes in this House led
the previous government to accept reluctantly that it must prohibit
corporal punishment in all state-supported education…. It has been
an embarrassing blot on the face of the UK's educational
system….” (UK House of Lords
1997–1998)
In 1997, the Court substantially broadened the scope of child
protection in A. v. UK. “A” was a child who
had been subjected to routine beatings with a cane by his stepfather. The
ECHR ruled that the state failed in its obligation to protect its citizens
from torture by other private citizens and urged a strengthening of the
law (A v. UK, ECHR, 1998: para. 24).
The Blair government indicated its intention to introduce new
legislation to remedy the legal problem, although it never supported a
complete ban on “smacking” (Financial Times,
September 24, 1998: 14). On the other hand, most Tory MPs were outraged by
the perceived interference by the Court into the private lives of British
families. According to William Hague, the Conservative party leader,
“We've taken the nanny state too far when we have to have court
rulings about what people can do with their own children in their own
homes” (Little, 1998b). Even the Labour
government's health minister has argued in favour of smacking.
The controversy was so heated that, in the final analysis and after
much hand wringing, the government opted not to introduce a bill on
smacking. However, in 2004, the debate began again, in part due to the
tragic death of a child at the hands of her abusive parent. Following an
inquiry, Liberal-Democrats introduced new legislation, culminating in a
choice between a ban on corporal punishment (opposed by the Labour
government) and a tightening of existing law to prohibit corporal
punishment that leaves a discernable mark. With respect to the latter
point, Lord Ackner (a Law Lord) had this to say in criticism of the
ban:
…[A] law against smacking would lead to an
unprecedented level of intrusion into family life in England and
Wales…. In order to fulfill their parental responsibilities, they
have powers which they do not possess in relation to anyone else. To say
that the child should have the same rights in this respect as if he were
an adult and that parents should have the same obligations as if they were
dealing with adults is to overlook the nature of the parent-child
relationship, its responsibilities and its sensitivities. (UK House of Lords 2003–2004)
Ultimately, the Lords passed a compromise bill allowing smacking that
did not leave marks, and the Commons followed its lead a few months
later.
In spite of professions of concern for the health and safety of
children, it is clear that, compared to their European counterparts,
British elites tolerate more physical harm, in spite of strong pressure
from the ECHR to provide greater protections for children. It is clear
from recent events that the ECHR is largely responsible for placing this
issue at the forefront of the policy agenda, although it is also true that
several important interest groups have pressed for greater attention to
the issue. British elite behaviour, overall, seems more consistent with
the dynamics of the early stages of norm dissemination—perhaps even
the “denial and resistance” stage—“tactical
compromise.” This could stem from the fact that the ECHR is asking
the British elites to act against the wishes of a nearly unanimous British
citizenry (see below). The Blair government seems to have calculated that
banning smacking would jeopardize its reelection prospects, and is
therefore willing to make only minimal concessions to the Court.
Summary: Policy Elites and the ECHR
In the two cases discussed above, it seems clear that the UK
government has engaged in tactical compromise with respect to the norm of
limiting police powers and banning the corporal punishment of children.
Although the latter norm is somewhat novel, the former is not and
represents one of the pillars of civil liberties. The government has
determined that where terrorist threats or widespread public opposition
exist, compliance with international norms should be flexible. At this
point, the “stages” theory of norm dissemination does not
fully explain this development and should therefore be amended. It would
more fruitful to recognize that, even for mature democracies, defiance,
denial and tactical compromise may coexist with more advanced degrees of
commitment.
British Public Opinion and the ECHR
While the preceding shows that the ECHR has a fairly strong influence
on shaping British policy agendas and even policy outcomes, the same
cannot be said with regard to shaping mass attitudes, with respect to
either beliefs or priorities.
Police Powers
Repeated opinion polls and election results make clear that most
British citizens tolerate—and even demand—very strong police
powers. As a result, it has rarely been a risky political move for a
sitting government to expand police powers. This is explained in part by a
general acceptance of quasi-authoritarian governing structures, as
documented originally in The Civic Culture (Almond and Verba, 1963) and more recently in Norrie
and Adelman, who argue that Britain has a historic tradition of
“consensual authoritarianism” (1989:
588). This, combined with increasing violence (related to IRA terrorism)
and crime (the crime rate quadrupled from 1960 to 1980) during the 1970s,
contributed to the Thatcher government's decision to adopt a
“tough on crime” approach as embodied in the Public Order Act
of 1986 and the Prevention of Terrorism Act of 1989 (Young, 1992: 97; Ewing and Gearty,
1990: 213). Even Tony Blair, the human rights advocate, stressed a
“get tough on crime” party platform in 1997, helping reassure
nervous voters that he would maintain many of these policies. Since his
election, he has introduced a number of bills aimed at limiting the rights
of criminal suspects, especially terrorist suspects (Chakrabarti, 2004).
From the mid-1980s to the mid-1990s, British public opinion was
generally supportive of a get-tough approach on crime, with three-fourths
agreeing that an individual suspected of planning to commit a crime, even
if he or she had no prior arrests, could be subjected to police
surveillance. According to BSA surveys, over one-third of respondents
agreed to the policy of holding a criminal suspect in prison overnight for
interrogation, without charging him or her.
In the face of increasing crime, a solid majority has favoured stiffer
sentencing for criminals: nearly half merely agree and one-third strongly
agree through the 1980s and 1990s, although the percentage of those
strongly agreeing peaked at 41 per cent in 1993 and fell to 28 per cent in
1996 (Tarling and Dowds, 1997: 209). In 1999,
roughly 80 per cent supported longer sentences, with support being
strongest among working-class respondents across political parties
(between 85 and 90 per cent, Evans, 2000: 64).
Throughout the period, confidence in the police ran high. A clear majority
interviewed believed the police could be trusted not to “bend the
rules” to obtain a conviction (a libertarian might add that with
rules being what they were, the police had no need to bend them) (Brook and Cape, 1995: 150). By 2000, the figure had
risen to 58 per cent in support of police practices (Bromley et al., 2001: 204). Throughout the period, the
public enjoyed far greater confidence in the police than in any other
public institution; over two-thirds believed the police department was
“well run” (Tarling and Dowds, 1997:
148). Note that public support for broad police powers remains strong.
On the other hand, UK attitudes regarding police powers were not
always sympathetic to continual expansion. During the late 1980s and early
1990s, many had become nervous about the loss of privacy rights. By 1991,
after more than a decade of Conservative party government, 54 per cent of
residents felt their rights were too easily changed by Westminster and 38
per cent (a plurality) agreed that individual rights were better protected
on the Continent (Dunleavy et al., 2001: 132).
By 1995, 63 per cent felt the state could infringe too easily on rights
and 43 per cent felt the Continental states had greater respect for
rights. Attitudes regarding the need for a Bill of Rights in Britain were
very favourable throughout this period: in 1989 70 per cent were in favour
and in 1995 73 per cent were in favour (Blackburn,
1999: 1060). Less than one-sixth agreed that the police could open
the individual's mail (although if the hypothetical suspect had a
prior arrest record, the figure jumped to one-third) (Brook and Cape, 1995: 195).
What is most intriguing is that these secular trends do not reflect
any clear, coherent bifurcation of public opinion. On the contrary, many
individuals in the UK don't always see limitations on police powers
as in conflict with civil and human rights. Attitudes in Britain are
moving very slightly in the direction of libertarianism, according to BSA
surveys. Although many indicators point to an increase in support for
police powers, overall trends on liberalism-authoritarianism point
slightly in the direction of liberalism. In 1990, those who believed the
UK was very free and democratic (and were presumably pleased with that
assessment) also believed that further limiting prisoners' rights was
sound policy (e.g., using silence in court to indicate guilt, allowing
police to search without a warrant, and making sure criminals are not let
off too lightly) (1990 BSA survey, correlation significant at .001). As we
see in Table 2, ideology has little to do with
peoples' attitudes about whether police are likely to bend the rules
(the responses are only weakly correlated with liberal-authoritarian
attitudes and not at all with party affiliation). In Table 3, ideology, as measured by Conservative party
affiliation, is not correlated with opinions regarding police powers to
intrude on privacy.
Given the ambiguous trend-line of the dependent variable, it is
obvious that the many ECHR rulings on police powers have no discernible
effects on trends in opinion. It is worth noting here that a future study
should probe more deeply into the effects of ECHR rulings on the attitudes
of members of the specific groups most affected by the ruling (immigrants,
abused children, abusive parents, prisoners, suspects, gays and so forth;
see Hoekstra and Segal, 1996).
To more clearly understand the origins of attitudes toward police
powers and where the ECHR fits into the mix, I have designed two models to
analyze survey results from the British Social Attitudes Survey of 2000
and the author-directed survey of 2003. In 2000 (Table
1), the dependent variable was the response to the question
“Do you trust the police not to bend the rules?” The measures
of the factors listed in the methods section of this paper (gender, age,
race, education, income and
LIBAUTH—liberalism-authoritarianism—as well as party
identification) are provided in the survey. Church attendance is employed
to measure religiosity. Measures of attachment to the ECHR and things
European are provided with the answers to two survey questions: “Do
you agree or disagree: Great Britain has a lot to learn from other
countries? (NATLEARN)” and “Do you think of yourself as
European? (NATEURO).” The only variables for which there is a
significant correlation are NATLEARN (at .005), education (at .005),
income (at .01) and LIBAUTH (at .05), although education is correlated in
the opposite direction than hypothesized (i.e., those with more education
trust the police more). The model, overall, has a very low adjusted
R2 of .014.
BSA 2000 Survey Question: “Do you trust the police not to bend
the rules?” (1 = SA, 5 = SD)
For the 2003 survey (Table 2), the question
is far more specific, and prefaced with a reference to recent ECHR
rulings: “The police should never investigate your personal records
and activities unless they suspect you have committed a crime, even if it
a matter of national security. Do you agree or disagree?” In both
cases, the following variables are included: gender, age, party, religious
commitment and income. In addition, a specific question prompts
respondents to give an overall assessment of the ECHR. The only variable
that is significantly correlated is the measure of engagement
(significance at .01); pro-ECHR sentiments tend to favour limitations on
police investigatory powers. Note that racial categories were not part of
the standard demographic package of the NOP survey and the author lacked
the resources to add the question. It seems likely that it would not have
had a significant role in the model at any rate.
Stiles/NOP World 2003 Question: The Police Should Never
Investigate Your Personal Records or Activities Unless They Suspect You
Have Committed a Crime (SA = 1, SD = 5)
Finally, to measure whether awareness of the ECHR's position on
the issue of police powers has an effect on attitudes, I split the sample
and posed the same question with two different prefaces (Table 3). As is clear, there is no significant
difference between the responses provided by each group; each response
falls squarely within the margin of error, making a test of means
unnecessary. This implies at the very least that opinions regarding police
powers are not changed by awareness of the Court's position, although
this could stem from several factors. First, it could simply be that
respondents are aware of the Court, but discount its status and
importance. Second, it could mean that respondents are unaware of the
Court and are confused about its significance. The fact that 13 per cent
had no opinion about the Court and 22 per cent were neutral is indicative
of a fairly high level of ambivalence and/or ignorance. Although
awareness is probably low, it is not for lack of publicity. In 2002, for
example, the eight newspapers with the highest circulation in Britain
mentioned the ECHR in a combined 365 stories.2
Thanks to Emily Clark for the fact. The newspapers in question
are The Times of London, The Independent, The
Guardian, the Daily Mail, the Evening Standard,
The Scotsman, Express, and The Sun.
It
is interesting to note that, of those expressing an opinion, favourable
responses outnumbered unfavourable responses by well over a two-to-one
ratio (46% vs. 18%). This level of support far surpasses anything UK
residents normally provide to any of the institutions of the European
Union (the UK population is the most euroskeptic in Europe), indicating
that they have sufficient awareness of the Court to distinguish it from
them.
Results of Split-Sample Survey of British Attitudes on Police
Powers
At any rate, taken together, it is clear that in the aggregate and at
the individual level, there is little to show that the Court is affecting
the minds of British citizens—with the exception of those who
already approve of the Court. But even this finding is ambiguous, since it
is not possible to clearly determine causation from correlation at this
point. Further research is needed to more precisely measure trends in
opinion over time and to measure the opinions of those individuals who are
most affected by Court rulings. Anecdotal evidence suggests, for example,
that the gay community is highly supportive of the ECHR, but even there it
would seem that opinions about the rights gays should enjoy were in place
long before rulings were handed down (Rayside,
1998).
Corporal Punishment
Rulings with regard to corporal punishment of children have provoked
the strongest reaction, almost all of it negative, of any of the
ECHR's actions in the UK. As soon as the ADT ruling was handed down,
a lively debate ensued, pitting pro-smacking groups against the rest. An
overwhelming majority of 88 per cent of British citizens favoured the
right to smack and blamed the recent ban on corporal punishment in schools
for a breakdown in discipline, not only at schools (Little, 1998a) but also in the home (Boniface, 1998). In 1991, 92 per cent of respondents
said tough discipline at home was either “very effective” or
“quite effective” at reducing criminal behaviour (BSA,
1983–1991). In 1983, a spare 10 per cent believed that British
children received too much discipline. In the 2003 survey conducted for
this study, fewer than 20 per cent favoured a ban on
“smacking,” the particularly violent form of spanking that was
condemned by the Court.
This said, for many years British citizens have believed that there
should be limits to how severely a parent is allowed to apply force to
correct a wayward child. In 1985, nearly 85 per cent of survey respondents
believed that in cases where a child has been “beaten,” the
state should intervene and take custody away from the parents (BSA,
1983–1991). In Britain, the question seems to hinge on what
“threshold” of discipline is acceptable; the line between
smacking and child abuse is set higher than elsewhere in Europe, and too
high to suit the Court.
It would seem that the Court actually prompted a backlash within
Britain, serving to strengthen the country's commitment to the right
to “smack.” This would not be the first time courts have had
this effect. In the United States, there is evidence that the Supreme
Court's Roe vs. Wade decision of 1973 served to polarize public
opinion on the question of abortion and made moderate solutions more
difficult (Franklin and Kosaki, 1989). It could
be said more generally that couching any problem in terms of legal rights
rather than interests can intensify conflict rather than resolve it. But
the evidence from the 2003 survey indicates that, once again, the
aggregate effect of the Court's ruling on British public opinion was
negligible (See Table 4).
Results of Split-Sample Survey of British Attitudes on
“Smacking”
In the 2003 survey, respondents were asked whether they favoured a ban
on “smacking.” Only 18 per cent agreed with the need for a
ban, and nearly half (45%) “strongly disagreed” with the need
for a ban. The regression carried out on these results (Table 5) indicates that pro-ECHR sentiments are the
only highly significant variable (significant at .001), although there is
a weaker, though still significant (at .01) relationship between gender,
age and party affiliation in the direction predicted earlier.
Stiles/NOP World 2003 Question: There Should Be a Law to Prevent
Parents from Smacking their Children (SA = 1, SD = 5)
Summary: The Mass Public and the ECHR
It is fairly clear that the ECHR has not, in general, made its
presence felt in the opinions of British masses. There is no indication
that overall trends in public opinion have shifted in response to Court
rulings (in spite of the publicity surrounding them), or that individuals
are likely to shift their opinions once the rulings of the Court are
brought to their attention. It is not clear whether this stems more from
ignorance or indifference, although one could make the argument that the
implication regarding the Court's influence is the same either way.
This distinction matters only with respect to remedies: ignorance is
easily addressed through greater publicity, while reducing apathy requires
convincing people that the Court is making the society measurably better
off—a much more difficult proposition.
The news is not entirely bad from the point of view of Court
defenders. Clearly, for those who already have positive feelings about the
Court, its judgments seem to resonate. There is considerable agreement
between these somewhat more cosmopolitan individuals and the opinions of
the Court, although again there is no way at this point to prove the
direction of causality. What is surprising is that factors normally
thought to be good predictors of progressive attitudes on most issues
prove to be of relatively little value in comparison. Age, ideology,
gender and education sometimes correlate and sometimes not—and
sometimes the correlation is in directions not predicted by conventional
theory.
Conclusions and Implications
Several conclusions may be tentatively drawn from these findings.
First, it is fairly clear that British policy elites cannot be expected to
always promote all human rights norms. This, in spite of the fact that the
UK helped create and promote them and its constitution embodies them.
Acceptance of human rights norms—as may well be true of other
international norms—is contingent on security conditions, public
opinion and other factors. The result is that one might see backsliding,
ambivalence and even resistance on the part of mature democracies with
respect to particular norms at particular times. This should be made more
clear in the various models of norm dissemination which clearly imply a
teleological drive to stasis. A better model might be the “spinning
plates” metaphor, in which the performer is forced to continually
apply energy to keep plates spinning atop a tall stick.
The stages discussed in the literature should be separated out and
treated more as “conditions” that may last indefinitely and
bear little connection to each other. Even further, it should be taken
into account that while under certain circumstances states may move
“forward” from stage to stage, they may also move
“backward.” But even this type of language is misleading,
since it is apparent in the UK case that decision makers may well believe
they are making progress in dealing with a threat to basic rights
(survival of the state and society) by temporarily suspending less
essential rights (right to a state-provided lawyer). Few would argue that
Abraham Lincoln set back the country's civil rights when he suspended
habeus corpus in 1861 in order to preserve the Union and ultimately free
the slaves.
The study also makes it clear that international norms that capture
the attention of the policy elites may be entirely ignored by the masses.
Just as light travels differently through air and through water,
international norms may not penetrate deeply into societies, even where
the elites are embracing them (or at least addressing them). Furthermore,
contrary to the premise of norm-dissemination theory, the public does not
always seek liberalization but sometimes advocates more restrictive
policies, even in advanced industrialized countries.
The good news is that, with respect to ECHR norms, mass attitudes seem
linked to affection for the source of the norms and tolerance for things
foreign, more than to the usual opinion shapers. This implies that
international norms could be made to matter—or at least that they
might find a ready audience—among those who are already favourably
disposed. Some speak of a cosmopolitan orientation among those who see
their society as part of a greater global whole and are generally tolerant
of alien ideas and values. That they might serve as a wedge with which to
penetrate a society is consistent with other work on norm carriers and
transnational social networks (Khagram et al.,
2002; Klotz, 1995).
European Court of Human Rights Cases
Cited:
A. v. UK. Application no. 100/1997/884/1096. 23 September
1998.
Armstrong v. UK. Application no. 48521/99. 16 July 2002.
Campbell & Cosans v. UK. Applications no. 7511/76 and no.
7743/76. 25 February 1982.
Castello-Roberts v. UK. Application no. 13134/87. 25 March
1993.
Chalkley v. UK. Application no. 63831/00. 12 June 2003.
E. and Others v. UK. Application no. 33218/96. 26 November
2002.
Halford v. UK. Application no. 73/1996/692/884. 25 June
1997.
Lewis v. UK. Application no. 1303/02. 25 November 2003.
Malone Case. Application no. 8691/79. 2 August 1984.
McLeod v. UK. Application no. 72/1997/856/1065. 23
September 1998.
P.G. and J.H. v. UK. Application no. 44787/98. 25 September
2001.
Stubbings and Others v. UK. Application no. 36-37/1995. 24
September 1996.
Tyrer v. UK. Application no. 5856/72. 25 April 1978.
Z. and Others v. UK. Application no. 29392/95. 10 May 2001.
Acknowledgments
The author would like to thank the College of Family, Home and Social
Sciences of Brigham Young University for its generous support which funded
the survey used in this study.
