Run for the hills! Here come the noisy grasshoppers

17 December 2012 by Adam Wagner

The Commission on a Bill of Rights is rumoured to be publishing its report tomorrow, just in time for its end-of-2012 deadline. It is also widely being reported, unsurprisingly, that the Commission may not produce a unified report at all. Unsurprising because the Commission was set an almost impossible task from the start.

Four Conservatives and four Liberal Democrats told to “sort out” UK human rights (the terms of reference were a little less vague, but that’s basically it), whilst also being limited to proposing a Bill of Rights that “incorporates and builds on all our obligations under the European Convention on Human Rights“. In other words, the could do very little at all except fiddle with our already existing, and actually quite elegant, Human Rights Act 1998. I have compared any new Bill of Rights arising from the Commission a bit like an updated Ford Fiesta; a new look and a few new features, but essentially the same car.

There will be plenty of analysis once the report is released. I wanted to concentrate here on the likely reaction. Matthew Parris got it right in Saturday’s Times (£) when he quoted Edmund Burke:

Because half-a-dozen grasshoppers under a fern make the field ring with their importunate chink, whilst thousands of great cattle, reposed beneath the shadow of the British oak, chew the cud and are silent, pray do not imagine that those who make the noise are the only inhabitants of the field; that of course they are many in number; or that, after all, they are other than the little shrivelled, meagre, hopping, though loud and troublesome insects of the hour.

Parris uses his analogy to compare the anti-Europe ‘Rabid Right’ in the Conservative Party to the ‘Looney Left’ in the days of New Labour.

The human rights debate is infested with grasshoppers “making the field ring with their importunate chink“. We will be hearing from all of them this coming week.

It’s not really their fault. The human rights issue involves the intersection of so many political pressure points and sore spots that it is a wonder any politicians manage to keep their cool and avoid nausea when considering the issue.

Immigration? Check. The Human Rights Act protects individuals from arbitrary and oppressive state actions. Foreign nationals, particularly those fleeing oppression, have most to lose – in terms of their fundamental rights- from a bad decision sending them back. So they regularly use human rights laws to challenge state decisions involving them. That can include criminals and suspected terrorists, another pressure point.

Europe? Check. The European Convention on Human Rights is an international treaty (drafted mostly by British lawyers) which is policed by the Council of Europe and the European Court of Human Rights in Strasbourg. It is not the European Union nor is it related, except tangentially, to the European Court of Justice in Luxembourg. Think of it as a creature born from an international agreement, historically separate from the other agreements we are party to. Judges in Strasbourg are elected from Council of Europe states, including the UK.

Judges usurping Parliamentary sovereignty? Check. The current Government has shown no great love for judges and their pesky decisions delaying the decisions of public authorities. This can most recently be seen with the ‘mood music’ which accompanies the plans to reform Judicial Review – see Mark Elliot. This may be why Lord Phillips, the recently retired head of the Supreme Court, is working hard to reduce political interference with our highest appeal court, before it is too late.

The right to privacy? Check. This otherwise fairly obscure right which exists under Article 8 is so important because its presence means that newspapers – particularly those which publish celebrity gossip – have a vested interest in reforming the rights system in favour of ‘freedom of speech: see the Daily Mail’s recent and new found love for the Human Rights Act.

The list goes on. Prisoners’ rights? Check. Gay rights? Check. Religious controversy? Check.

Where does this leave us? In the worst possible position. Politicians and to an extent the press are left incapable of having a sensible debate about human rights protection, so befuddled are they by the “inopportune chink” of the noisy grasshoppers. The debate becomes noisy, feral, extreme and almost devoid of substance or understanding of the basic issues.

That not a single high-profile member of the traditional party of small government, the Conservatives, can present a coherent argument as to why it may be a good idea to protect individuals from arbitrary and overweening state decisions speaks volumes.

That Labour MPs, which to their credit passed the Human Rights Act before realising that it might reduce their own powers, cannot support their own great achievement represents a triumph of electoral pragmatism over principle.

Meanwhile, “thousands of great cattle, reposed beneath the shadow of the British oak, chew the cud and are silent“. Call it what you like; a human rights act, a bill of rights, fundamental rights, civil rights. They all exist to protect the great cattle from the noisy grasshoppers. It perhaps no surprise that politicians cannot find the backbone to speak out over the din. It takes courage and some disregard for electoral reality to speak out for unpopular minorities, and even more so to argue in favour of  limiting of your own power.

Across the world, legal rights are locked into constitutional systems to protect the groups which cannot rely on the protection of legislators. Our fledgling rights system does exactly that, whilst maintaining Parliamentary sovereignty. And it  is working, as the overwhelming majority of the responses to the Commission on a Bill of Rights’ consultation conclude.

That is not to say the rights system perfect. To say so would be to respond to like with like, and add another grasshopper to the swarm. But reform of human rights does not entail repeal of the Human Rights Act, nor should it.

Tomorrow, let’s try to have a sensible debate. Please leave the baggage at the door and think seriously about rights. Otherwise, everyone loses except for the noisy grasshoppers.

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Read more:

• Hugely important report due imminently… no, not that one
• Will the Bill of Rights Commission achieve anything at all? – Alice Donald
• The rights (and wrongs) of human rights (and human wrongs)
• The Commission on a Bill of Rights should open up
• Second time lucky? Bill of Rights Commission consults… again