The Fragility of Human Rights

5 October 2014 by

Holidays_Halloween_Boiling_cauldron_on_Halloween_024660_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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  1. Captain Sensible says:

    This piece confirms what I have said on here before and that is that the ECHR is part of a wider European issue and if the public are anti-Europe then it will be reflected in the negativity towards European institutions.

    As a member of the said public it is difficult to reconcile the almost mass hysteria from the HR community regarding potential changes to HR legislation with what I experience in my everyday life. A future Conservative government proposes a British Bill of Rights based on British cultural values and laws, and a wide swathe of the public feel that this is more appropriate than some distant organisation passing judgement without any real understanding of our values and beliefs.

    You can argue its those nasty tabloids that distort the truth or any other reason regularly trotted out on here, but the truth is that the politicians are reflecting the public mood as our right to govern ourselves and control our borders has systematically been signed away in EU treaties without our consent over many years. The public has become disenfranchised and marginalised.

    The ECHR / HRA is forever spreading its tentacles into areas where is was never intended to go. There must be limits to its reach thus ensuring legitimacy of authority and public trust. A BBoR is a way to secure this trust again.

  2. jonholbrook says:

    On spiked I have argued that UK human-rights law doesn’t need reform – it needs repeal.

    Two cheers for the Tory war on human rights:

  3. markjf62 says:

    An interesting article.
    I suspect it is early days to be suggesting that the ‘plan’ is “legally illiterate”, and such comments will do little to persuade the seemingly increasing number of people in this country to the view that the Human Rights Act is worth retaining in its present incarnation. The most vocal supporters of the current legislation create the impression of being locked into the position that this legislation represents the best we can, or will ever, do to protect rights. They also give all the appearance of being intolerant of anyone who dares to suggest anything contrary to their viewpoint or who dares to speak ill of the sacred cow that is the ECHR. And if intolerance doesn’t work, well, let’s try behaving like Chicken Licken.
    It’s a shame the current proposals are not being used as the basis for a reasoned and reasonable debate about the future of ‘human rights’ in the UK.. The article raises Obama’s second inaugural address, and urges us to “locate [our] arguments in British constitutional tradition and also ensure resonance with contemporary society.” And in this argument is located the precise reason why many in this country feel such antipathy to the current legislative regime: it is a European regime. What Obama was appealing to was based on the principles of Jefferson, Paine and the Founding Fathers of the country, and the protections within the American Constitution – drafted by Americans, for Americans, and something of which they could be rightly proud. Many people in the UK, rightly or wrongly, see British history in terms of Waterloo, Trafalgar and any number of other historical events built deep into the British psyche. If we are going to have ‘rights’, they are not going to be forged in Europe nor decided in Strasbourg. You are not going to change centuries of ‘proud’ history in sixteen years, nor persuade them if the HRA is abolished the sky is going to fall in. Nor will you easily dispel the apparent feeling that since the HRA was introduced, many people have seen and felt their ‘rights’ ebb away.
    Contrary to popular belief, ‘rights’ are not given; by Strasbourg, by the American Constitution or by any other piece of legislation. They are inherent, we are born with them, and they do not reside in any piece of paper. How they are protected must be a matter for ongoing debate and discussion.

  4. John A. Kehoe says:

    Repealing the Human Rights Act would run counter to every
    idea of British justice and of human rights so carefully cultivated over so long a period

  5. Anne says:

    Even If the UK withdraws from the ECHR, it is “mooted” that the EU as a whole will “join” the ECHR, and once it does THAT, if we are still in the EU, we will obviously be back in the ECHR whether we like it or not-unless we come out of the EU before then of course.

  6. John says:

    There are three points which I believe will need clarification and exposition in this debate.
    First, the point has to be made at an individual level that these rights which we have claimed for ourselves – to protect us against an over-weening and over-mighty state – are there to protect each and every one of us. Lose these rights and we could all end up living under a form of state tyranny such as we see now and have seen in the past in other parts of the world.
    Second, the fiction that British people are opposed to these rights is a lie. We are confronted on this issue by an overwhelmingly right-wing media, some of which openly supported fascist parties and movements in the past. What else does their opposition to human rights actually demonstrate other than support for a form of fascism which suits their owners’ purposes?
    Third, the current hate-mantra of the media and right-wing politicians for human rights is largely designed to appeal to the neanderthals who support UKIP and who the media and Tories want to attract back into the Conservative fold. It is nakedly political to attack human rights but in no conventional sense. It is a stratagem made to garner votes from disaffected UKIP supporters.
    Withdrawing from the ECHR means withdrawing from the EU; to remain a member-state it is a requirement to be signed-up to the EU Charter, largely based on the ECHR.
    Rejecting European human rights means rejecting EU membership.
    Perhaps this is really what this whole debate is actually about?

  7. “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.”

    This is ridiculous.

    If you actually read Magna Carta it has no relation to what we consider to be human rights today, unless you think the abolition of evil practices in forests is a human rights issue.

    Daft ahistorical claims about the relation of the Convention on Human Rights to English constitutional law do not assist. The Convention, and the Act, have to be defended on their merits. Rubbish about how it is based on Magna Carta and the common law is to sink to the level of the Daily Mail and its falsehoods about its impact.

  8. stewilko says:

    Reblogged this on stewilko's Blog and commented:
    Another glimpse at the inner workings of an evil conservative party. Their wish and drive is to diminish each individuals rights as being a human being. To destroy the person right to protest against the government in power. They are already ignoring the European Court, for instance the dreaded bedroom tax.

  9. Jane Young says:

    Reblogged this on Jane Young and commented:
    Must-read blog from the UK Human Rights Blog

  10. James Lawson XIX says:

    That the the Convention was drafted by British Lawyers is a myth propagated by New Labour and then repeated so often that it has become fact by default. The purpose of such a statement was to convey the idea that our liberal democracy gave the Convention to Europe which therefore needed to be ‘brought home’ and enacted in domestic law. The same myth is now used to suggest that since the Convention is ‘our toy’ we are free to break it if we want to.

    Little, if any, mention is made of the earlier International Declaration of Human Rights upon which the European Convention is based, that it was drafted, for the most part, by lawyers other than British Lawyers and represents the basis upon which the United Nations operates.

    It follows that the Conservatives are not simply opting out of some ‘wooly’ European Convention, but are turning their backs upon an international normative standard of treatment on the basis that others, such as China and others with whom we trade manage to do business just as effectively by ignoring it.

  11. Jon Danzig says:

    Our commitment to Human Rights is also an international issue. What message do we send to other countries if we withdraw from the European Convention on Human Rights? Those who understand why it was essential to establish Human Rights conventions after the Second World War will surely not want to see them diluted or undermined. We need to ensure that Human Rights are properly understood, and legitimately interpreted and upheld throughout the world, not just in this country.

    My commentary:

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