When I talk about the story of David Maxwell Fyfe's role at Nuremberg and Strasbourg, I am regularly challenged with his later support of capital punishment, his conduct in attempting to restore public morality after the war, and his failure to support the legalisation of homosexuality.
Because my story tells of the period 1945 to 1950, many think that I am unaware of Maxwell Fyfe’s later time in office. That is not so, but I have chosen to tell this story because it shows a moment of transformation from war to peace, from dictatorship to justice, from barbarity to the restoration of natural law as human rights.
What happened next shows Maxwell Fyfe on the wrong side of history, and disappoints those who pined for further and faster progress. A lot of politicians have done that and it doesn’t make a good story.
For a moment he was part of something golden which is worth clinging on to.
Here are a few thoughts on his controversial legacy.
At no time have I ever countenanced capital punishment as an effective tool of law. I wholly disapprove of legalised state execution.
However, we do understand that capital punishment was around for many hundreds of years, and that my view is part of what we describe as recent progress.
In relation to the application of the royal prerogative of mercy in the case of Derek Bentley, I recognise that the prerogative was a means of the executive interfering with the due process of law. This was a prevalent feature of the Nazi state, the leaders of which we prosecuted in Germany.
Still I wish he had employed it.
When Maxwell Fyfe was appointed Home Secretary in 1951 he was given the job of restoring public morality. Victorian public values had slipped away during the Depression and the war, and the Victorians in the cabinet wanted them re-established. They also wanted to protect the young. From this distance it is clear that people were fed up of the hypocrisy that was an inevitable side effect of demands for public morality. And they were taking their first uncertain steps towards social liberalism. The sixties were not far away.
However I recognise that the clamping down of the sale of sex was executed against both men and women.
LEGALISATION OF HOMOSEXUALITY
Whilst he was Home Secretary, Maxwell Fyfe established the Woolfenden Commission (The Report of the Departmental Committee on Homosexual Offences and Prostitution chaired by Sir John Wolfenden.)
By the time it reported and recommended the partial legalisation of homosexuality Maxwell Fyfe was Lord Chancellor. He did however oppose the recommendation in the House of Lords.
In opposing legalisation he was chiming with all contemporary establishment thinking as is shown in the subsequent debates. There was concern about the protection of the young, amongst a range of reasons for its rejection. The best illustration is not from those who opposed the measures but the conclusions of those who championed it.
As the act was moved in the House of Lords, Lord Arran, who with Leo Abse had seen it through parliament ten years after Woolfenden reported, concluded by saying:
'I ask one thing and I ask it earnestly. I ask those who have, as it were, been in bondage and for whom the prison doors are now open to show their thanks by comporting themselves quietly and with dignity. This is no occasion for jubilation; certainly not for celebration. Any form of ostentatious behaviour; now or in the future, any form of public flaunting, would be utterly distasteful and would, I believe, make the sponsors of the Bill regret that they have done what they have done. Homosexuals must continue to remember that while there may be nothing bad in being a homosexual, there is certainly nothing good. Lest the opponents of the Bill think that a new freedom, a new privileged class, has been created, let me remind them that no amount of legislation will prevent homosexuals from being the subject of dislike and derision, or at best of pity. We shall always, I fear, resent the odd man out. That is their burden for all time, and they must shoulder it like men—for men they are.'
This was the view of their champion. Maxwell Fyfe’s views were not exceptional in any way. They were zealously dramatized by Robert Boothby who was a promiscuous bisexual colleague of Maxwell Fyfe’s.
The miracle is the real liberation of sexual identity which has been celebrated in recent decades.
You can interpret Maxwell Fyfe’s life in a number of ways. You can say that he peaked as a lawyer and politician in opposition and failed in government. You can say that his passion for natural justice and the law of nature stemmed from something deep in his Scottish past and from there to ancient Greece. That it was his conservatism that allowed him to triumph in Nuremberg, but failed him in power and that for him the ECHR created a stream of unintended consequences.
You can’t argue however that the ECHR has not been an agent of change, eliminating the death penalty and supporting equality and confronting discrimination. Nor can anyone deny the words spoken by Maxwell Fyfe in his summary at Nuremberg :
'The law is a living thing. It is not rigid and unalterable.Its purpose is to serve mankind and it must grow and change to meet the changing needs of society.'
He understood the limitations of any generation of people, but believed that the law would mutate from one generation to another to allow it to serve their needs
And, more or less, it has.
Tom Blackmore addresses the issues surrounding his grandfather