Will stoking Euro anger help human rights?
19 April 2011
There is a scene in the film Milk in which Harvey Milk, a gay rights leader and politician, counsels his young protegé Cleve Jones on how to rally an angry crowd. Cleve has been reading a convoluted speech to little effect, when Milk steps in to show him how it’s done.”Lose the note cards next time”, he tells Cleve, “your job is to say into that bullhorn what they’re all feeling”.
Geoffrey Robertson QC has taken Harvey Milk’s advice in a recent article in the Daily Mail in support of a British Bill of Rights. We can be angry about European human rights judges and the European Convention, says Robertson, because “human rights can be delivered without Europe infringing the sovereignty of the British Parliament” through a British Bill of Rights. He feels the pain of the Euro-sceptic case.
The article, in a way, represents a wide-ranging defence of human rights, but as essentially “British” rights which can, via a Bill of Rights, be dislodged from their somewhat unsavoury European roots. Tony Blair’s government, Robertson argues, lazily adopted the European Convention on Human Rights “off the peg” whereas it should have custom-built a British version.
Robertson criticises the Convention, which he says was a “wonder for its time, but that time was the 1950s”. It fails to mention the rights of children or the disabled, health, welfare, the right to a healthy environment or the right to trial by jury. Moreover, its pre-amble, which refers to a common heritage of political traditions is “Euro-centric, Euro-prosaic, and Euro-dishonest” as it ignores the fact that many of those political traditions include fascism and Nazism.
His real ire is reserved for the European Court of Human Rights, which gives “bad” judgments, some of which are “poorly argued, incoherent, even intellectually devious.” He gives the example of the invention of a right to reputation and the its definition of privacy which is “little better than psycho-babble” and which has encouraged our judges to grant “super” and “hyper” injunctions (which, it should be mentioned, themselves may have been hyped up).
A British Bill of Rights, Robertson concludes, could cure all of these problems. It would be a “powerful symbol” of British identity and our longstanding tradition of liberty, and would ensure that the European court “let most of our decisions stand” under the margin of appreciation doctrine.
Robertson’s may genuinely believe that the deficiencies in the European Convention as well as the Strasbourg court are good enough reason, in themselves, to set up our own uniquely British shop. He may be right; Lord Hoffmann, amongst others, agrees that he Strasbourg court is not up to scratch.
However, the article may also represent a clever but potentially dangerous tactic of playing to the Daily Mail crowd. In Harvey Milk’s words, telling them what they are feeling, but without considering the effect.
One problem with attacking judges for making bad decisions in human rights law is that it becomes a legitimate means of attacking a decision itself. Many members of the public have little understanding as to the difference between a domestic human rights decision and a European one, and tend to attack both as “European” decisions made by unelected judges.
Many will see Robertson’s article as authorising this approach, and this may have unintended consequences. What happens when, following the creation of a British Bill of Rights, a journalist asks why we are still relying on European case law at all? She could quote Robertson as authority for scrapping it altogether. We would be left in the absurd situation of trying to erase any traces of “European” law when that law was, as Robertson rightly says, greatly influenced by our own legal system and our own lawyers.
Another problem is his attack on the European Convention. Whilst the Convention has just turned 60, it is a living instrument and has, in the tradition of the common law, developed to fit the dynamic social realities of European states in the intervening decades. To say it is not fit for purpose because it is 60 years old is a caricature, and accepting that argument will lead some to advocate ditching both the Convention and the enormous and sophisticated body of case law which surrounds it. That is not to say it is perfect, but it is notable that the main opposition to human rights is not in the areas which Robertson identifies, but rather in relation to unpopular members of society such as prisoners and asylum seekers. A bill of rights is unlikely to satisfy critics of the Convention.
As to whether ex-fascist European states have a right to put themselves in the same category as Britain, which apparently invented human rights, this again is problematic and playing up to anti-French and German voices. After all, Britain has had dark moments in its own history: the Star Chamber, pogroms, and more recently the treatment of its colonial subjects in Kenya spring to mind.
More importantly still, it is odd to argue for universal human rights in the language of national exceptionalism. Surely human rights are about recognising basic principles which apply equally across nations, not cherry-picking aspects of our national history which we would like to teach in schools. Robertson misses the point about the United States’ famous Bill of Rights. It is central to American identity not because it is uniquely American, but because it has been used by so many citizens in a land of immigrants to ensure their basic civil rights. To that end, it could be transplanted to any other country with little variation.
Finally, Robertson’s suggestion that adopting a British Bill of Rights would somehow convince European judges to leave us alone is somewhat fanciful. The new Bill of Rights commission has been ordered to leave the Convention in place, so we would still be under the ambit of the European Court in Strasbourg. Saying we have our own Bill of Rights would not protect our government from another debacle along similar lines to the prisoner voting case.
Robertson’s tactic of telling Daily Mail readers what they are feeling follows the Harvey Milk play book, and may even bring some sceptics on board. However, whilst stoking more anger against European judges and European states may score a short-term victory for a bill of rights, it may also do damage to our system of human rights law in the long term. In the end, Cleve’s more considered approach may be less rousing but ultimately more effective than Milk’s and Robertson’s bullhorn empathy.
Sign up to free human rights updates by email, Facebook, Twitter or RSS