The liberal case for scrapping the Human Rights Act

The new justice secretary, Liz Truss, has announced that the government’s plan to scrap the Human Rights Act, and replace it with a British Bill of Rights, is still going ahead. Recently it was reported that new prime minister Theresa May intended to shelve the plan so as not to pick another fight with parliament in the wake of the Brexit vote. And Truss gave an interview to the Today programme in an attempt to dispel talk of a u-turn. ‘I’m looking very closely at the details’, she said, ‘but we have a manifesto commitment to deliver [the British Bill of Rights]’.

The repeal of the Human Rights Act, which incorporates the European Convention on Human Rights into UK law, has been a long time coming. David Cameron introduced the idea in 2006, and made it a Tory manifesto pledge at the 2015 General Election. It was thought that a public consultation would be published before Christmas 2015. However, speaking at the Home Affairs Select Committee in early December 2015, the then justice secretary Michael Gove said it would be put on hold until 2016.

For those who believe in human rights, repealing the Human Rights Act would be catastrophic – the reversal of centuries of popular struggle. The website for the campaign group Liberty – which has launched a campaign to ‘Save our Human Rights Act’ – includes a timeline, illustrating the history of human rights. The timeline puts the passing of the Human Rights Act in 1998 in the same lineage as the Declaration of the Rights of Man, which followed the French Revolution, and the sealing of Magna Carta by King John in 1215.

But the idea that the human rights we have today represent the culmination of centuries of popular struggle is nonsense. The international system of human-rights law we have today has little in common with the freedoms that were fought for by the radicals of the past. In the 17th and 18th centuries, radicals sought to assert the rights of the citizen against the power of the state. Today’s human-rights courts, by contrast, embolden unelected judges to determine the scope of our liberty.

The historian Samuel Moyn draws this distinction in his book The Last Utopia. He argues that ‘the rights asserted in political revolutions and championed thereafter were central to the construction of state and nation’, and that there ‘is a clear and fundamental difference between earlier rights, all predicated on belonging to a political community, and eventual “human rights” that emerged during the 1940s’. Moyn’s point is that, in contrast to the rights asserted by radicals in the 17th and 18th centuries, human rights look beyond the nation state for protection, usually in the form of an unaccountable court.

The problem with human rights is encapsulated in the notion of a ‘margin of appreciation’. This is the margin granted to nation states by the European Court of Human Rights to determine their own laws. Proponents of the Human Rights Act are right to point out that the UK is granted a significant ‘margin of appreciation’ to interpret the European Convention on Human Rights. This is why less than one per cent of human-rights cases lodged against the UK between 2012 and 2014 resulted in a finding against the government. But the fact that the European Court of Human Rights ‘grants’ the UK a wide margin is irrelevant. The problem is that the court is allowed to set the margin – that is, determine the extent of our power to make laws – In the first place.

Freedom-loving liberals have little to fear from repealing the Human Rights Act, particularly when you consider its track record in protecting key freedoms. While human-rights proponents point to things like the Hillsborough Inquiry as examples of investigations that wouldn’t have taken place pre-Human Rights Act, we rarely hear about the swathe of cases that human-rights law is incapable of addressing. A tiny minority of the applications made to the European Court of Human Rights actually reach the court. The fact that the UK government has been able to pass a procession of draconian anti-terror measures – including detention without charge and restrictions on speech and thought – demonstrates how little human-rights law does to protect basic freedoms.

Human-rights laws are flawed in both practice and principle. They are flawed in practice because they consistently fail to curb the draconian excesses of our legal system. And they are flawed in principle because they permit unelected judges to determine the extent of our freedoms. The radicals of the past envisioned a world in which certain rights could be asserted by citizens against the power of the state, not one in which the parameters of freedom were set by a distant, unaccountable court. By allowing judges to be the architects of our freedom, human-rights laws are a betrayal of the radical tradition they claim to inherit. Lovers of freedom should not fear the repeal of the Human Rights Act. They should welcome it.

Luke Gittos is law editor at spiked, a solicitor practicing criminal law and convenor of the London Legal Salon. He is the author of Why Rape Culture is a Dangerous Myth: From Steubenville to Ched Evans. Why Rape Culture is a Dangerous Myth: From Steubenville to Ched Evans. (Buy this book from Amazon(UK).)