The Fragility of Human Rights
5 October 2014
The announcement this week of a new Conservative Party plan to repeal the Human Rights Act, ‘Protecting Human Rights in the UK’, has brought to a boil a cauldron of incredulity (pictured) about the Government’s attitude towards the law. The response from human rights lawyers and advocacy groups has been swift. Liberty describes the Conservative Party plan as ‘legally illiterate’. The several ways in which that is true have already been the subject of detailed exposition. Indeed, Liberty’s response is even more accurate than it might first appear. If the Conservative Party plan is legally illiterate then it is best read as a political tactic to assure its supporters that it is the party of anti-European sentiment.
Nevertheless, if the move helps to bring about a Conservative Party government after the general election next May, then there is a great likelihood that steps will be taken to weaken the legal protection of human rights in Britain. The political pressure to do so will be even greater if the government must rely on support from Eurosceptic Members of Parliament for its majority in the House of Commons. Thus, political tactic or not, a Conservative Party-led government will likely take action against human rights law after the General Election.
Any attempt to oppose such action on institutional grounds will almost certainly fail. Britain’s national conscience has little sympathy for European institutions. Sweeping historical assertions are dangerous, of course, but it is not unreasonable to suggest that Britain’s engagement with ‘Europe’ owes more to pragmatism than idealism. The Council of Europe, and later the European Union, were ways to prevent war and secure access to European markets. This is not to suggest that the institutions do not merit defence – they do – but calling on Britons to support the European Convention on Human Rights for the sake of those institutions is wrong-headed.
It is also of little use to point to the Convention’s drafting in response to Hitler’s Germany or to draw parallels with anti-Convention sentiment in Putin’s Russia. The public will not be won over by a claim that adherence to the European Convention on Human Rights is all the stands between Britain and a totalitarian nightmare. Indeed, if the public was so fearful they would, one hopes, vote to change government forthwith. The resort to such arguments demonstrates how fragile the consensus on human rights is in Britain – it is thought necessary to argue from extremes to make a compelling case.
Human rights are fragile because it is not clear what they are for. The Labour Government that brought about the Human Rights Act is also, and perhaps especially, responsible. For Tony Blair’s government the Act was a means to keep Britain from falling foul of the European Court of Human Rights – not a new constitutional settlement for ‘New Labour’ and its ‘New Britain’. It was an institutional and legal stratagem and in human rights, as in other matters of government, the debate about institutions and laws is a secondary one. This is not to suggest a lesser importance but rather to acknowledge that institutions and laws serve political values and it is necessary to first articulate those values.
It is essential to appreciate that the debate about political values did not begin in 1998, or in 1945, and that the political values at stake are not merely about saving Europe from fascism. There is a lesson here from across the Atlantic. When President Obama, in his second inaugural address, spoke of Stonewall in the same breath as Selma and Seneca Falls, his purpose was not easy alliteration. Rather, he was drawing a connection between equality for gay and lesbian Americans and equality for black Americans and American women. The US constitutional tradition, for all of its flaws, can understand contemporary debates about political values in light of its history.
Advocates for the legal protection of human rights need to locate their arguments in British constitutional tradition and also ensure resonance with contemporary society. The General Election next year takes place a month before the eight hundred year anniversary of Magna Carta – when King John was made to sign a pact at Runnymede to limit his power. If the debate over human rights is to be won it will be won by drawing a line from the Barons at Runnymede, to the Suffragettes in Holloway Prison, to the campaign against section 28, to every individual in Britain today whose liberty may prove dependent on the legal contestation of state power. Our fragile human rights need more than institutions and laws – they need an articulation of values.
Dr Cian Murphy is Academic Co-Director of the Center for Transnational Legal Studies
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