As a sequel to this morning’s post on Michael Pinto-Duschinsky’s resignation from the Commission on a Bill of Rights, a comment on his Daily Mail article: I escaped the Nazis – so spare me these sneers about tyranny.
Pinto-Duschinsky explains that because he and his family escaped the Nazis, he has a special perspective on human rights:
I know what the abuse of human rights really means. It is certainly not the kind of nonsense we hear so much about today – parents smacking children, the eviction of travellers from illegal encampments or the deportation of foreign criminals in breach of their supposed ‘right to a family life’.
This argument brings to mind an episode of Sex and the City when the Charlotte York character is talking to her partner Harry Goldenblatt about his mother’s insistence that he marry a Jewish woman:
Harry: Keeping tradition alive is very important to her. She lost family in the Holocaust.
Charlotte: [makes a face]
Charlotte: Well, now I can’t say anything because you’ve brought up… the Holocaust.
As is often said, the Holocaust is relevant (although, as Samuel Moyn has argued, perhaps not as relevant as is commonly assumed) to the European Convention on Human Rights, as the recent rise and fall of fascism was fresh in the minds of its drafters. But Pinto-Duschinsky uses “the Holocaust” as a rhetorical shield rather than a proof of his arguments.
What exactly is his point? That human rights law should only apply to “real humanitarian abuses or instances of true political oppression”? What does he mean by “real” and “true”? In any case, this relies on a selective reading of the history of the Holocaust amongst other atrocities. Hitler and the Nazis spent most of the 1930s not exterminating Jews and Gypsies but eroding civil and political rights which then allowed them to put in place, with impunity, the killing machine which was used in the Holocaust.
At first, it was death by a thousand injudicious cuts and the drafters of the European Convention – which, yes, always included the right to family life – knew that guaranteeing free speech, the right to vote and other civil rights would act as a bulwark against the rise of fascist governments.
Is Pinto-Duschinsky arguing that the ultimate, unchallengable power of Parliament, reflecting “the will” and even the “impulses” of “the people”, will be enough to prevent rights abuses? Going back to the Holocaust, the impotence of the judiciary and the Reichstag to challenge the ultimate power of the executive was another reason why Nazi policies, which are now used as a byword for the worst kind of injustices, were left unchallenged.
The American Constitution enshrines a separation of powers system in which neither the legislature, executive or judiciary has ultimate power. In theory, this prevents political fundamentalism, and arguably the UK has spent the last few decades trying to catch up.
Stripping away the rhetoric, what Pinto-Duschinsky is really saying is that his view should be privileged because he understands what rights abuses really are. Members of my family died in the Holocaust, but I would never suggest that it gives my arguments on rights any magical quality. I expect that other members of the Commission’s families were affected by the Holocaust, and that they may be a little put out by Pinto-Duschinsky’s broadside against them. For example, Professor Philippe Sands’ mother spent seven years fleeing from the Nazis.
Pinto-Duschinsky clearly lost his argument within the Bill of Rights Commission, which is why he resigned. And as I suggested earlier, the Commission’s terms of reference were never going to provide fertile ground for the “democratic override” he – and indeed, perhaps the Prime Minister – are seeking. But that is because it is a creature of Coalition compromise, not of any malign influence by the Ministry of Justice or “members of the fashionable human rights culture”.
I expect I may be accused of insensitivity. But the last thing the UK’s argument over rights needs is more rhetoric, accusation and political manoeuvring. If Pinto-Duschinsky wants to invoke the Holocaust, this should not insulate him from having to explain what his real argument is.
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