A rights kerfuffle
New Labour's Human Rights Act and the Tories' proposed British Bill of Rights share the same elitist prejudice: that ‘rights’ are gifts granted by governments and judges.
Theological question of the week: when and where is David Cameron expecting God to hand him down the new 10 Commandments? After all, Conservative Party leader Cameron says that he wants his new British Bill of Rights (which would replace the Human Rights Act) to be made untouchable in law, so that no government could ever alter it. And who but God could have the supra-human right to set down laws in such tablets of stone?
There has been much heated debate among lawyers and constitutional experts about what the exact differences might be between Cameron’s Bill of Rights and the existing Human Rights Act. No doubt there are fascinating points of legalese to be resolved here. But in wider political terms that make sense to the rest of us, what is striking is the degree to which both sides begin from the same elitist premise and prejudice.
Both New Labour’s Human Rights Act and the new Tories’ proposed British Bill of Rights accept that rights are something not to be fought for from below, but handed down from above. To both sides of this debate, rights are not issues of popular demand, but rather gifts in the hands of governments and judges, more matters of managerial convenience than of mass democracy. Under such a system, whatever it is called, the rest of us citizens are reduced to going cap-in-hand to the men and women in wigs-and-gowns, to ask if they might see their way to letting us have any spare change in the currency of rights.
When it came into force in 2000 the Human Rights Act, based on the European Convention on Human Rights, was hailed as a great breakthrough for democracy in Britain. Yet it was no coincidence that such a judges’ charter should have passed into law at a time when active political involvement was atrophying. It symbolised the trend for power and public authority to be increasingly concentrated away from the elected and accountable parts of government, towards the unelected and unaccountable, among whom the judges – led by the law lords – are the foremost.
The list of human rights that the convention and the Act promise to uphold, from free expression to a fair trial, sounds fine. But each one is hedged about with enough conditions to make our alleged rights subject to broad judicial interpretation. More importantly still, by seeking so strictly to define what rights we are and are not entitled to, these legal instruments helped to reinforce a conformist, conservative climate in society. Legal rights might have been extended on paper, but real liberties were reified by statute. And the law has generally been interpreted in the narrow-minded spirit of the age. Thus freedom of expression has been limited by reference to the right to privacy; yet that supposed right has provided no defence against increased intrusion into our private and family affairs.
Rights – whether the vote or women’s equality – were once seen as things to be fought for by the people and wrested from the authorities. Today, by contrast, our top-down human rights system reduces the people to a ragbag of victims with individual grievances. The Human Rights Act has become a sort of legal arm of the me, me, me culture, where anything somebody wants, from a baby to a quiet night’s sleep, can be reposed as a ‘human right’. In essence we are infantilised before the law, as stroppy children demanding the human right not be unhappy. This is demeaning both to the concept of rights, and to the status of the citizenry.
Tony Blair himself now complains, like Cameron, that the Human Rights Act his government brought in can act as a hindrance to defending our society against crime and terrorism. Yet when it was introduced, the Human Rights Act was supposed to serve as a substitute grand vision for the Good Society. One of its architects even wrote a book describing human rights legislation as nothing less than ‘Values for a Godless Age’, a sort of ersatz set of moral commandments.
No law, however, can fill such a gap in society. In practice the Human Rights Act has often looked more like a catch-all charter that allows uncertain and directionless authorities to make it up as they go along. It has served as both excuse and scapegoat. In the name of human rights, it appears that just about anything can be justified. A recent case where police chased a suspected car thief on to a roof, then sent him up a fried chicken meal and drink and allowed him to doze in the sun before he came down, all in the name of protecting his ‘human rights’, provoked predictable howls of outrage about political correctness gone mad. But in fact this was only a stark illustration of the general trend for authorities to blame their own unwillingness to take risks or hard decisions on concerns about human rights law.
Against this background, no doubt some will see Cameron’s proposed British Bill of Rights as an attractive alternative. Yet it shares the same elitist notions of rights as a privilege to be granted from above. Critics have pointed out that, for all of his blowhard Little Britishness on this issue, Cameron has fought shy of the idea that Britain should quit the European Convention on Human Rights. This is important, not because of any Britain v the EU battles, but because it symbolises Cameron’s subservience to the idea of distant judges – whether in The Hague or the Royal Courts of Justice – holding sway over our rights. The issue is not so much about national sovereignty as the self-determination of the citizen.
Indeed, if anything, Cameron’s proposals go further in an anti-democratic direction. He has suggested that the British Bill of Rights should be set in stone so that future governments could not tamper with it. The fact that this is an entirely impracticable proposal is beside the point. It signifies that he wants to protect ‘our’ human rights, as presided over by the wise old judges, from being interpreted and shaped by any governments whom we, the ignorant electorate, might elect in future.
Cameron shares this wish with some surprising allies, such as journalist Henry Porter, the supposed civil liberties champion of the liberal Observer, who recently wrote that: ‘We need a written code which entrenches rights and the rule of law, for now and future generations, a code which may never be altered or distorted by ambitious men in the pursuit of power rather than the good of the people; this is the urgent concern of all democrats, no matter what party they support.’ Porter’s ‘democrats’ appear to be those who wish the courts to usurp the authority of elected governments.
Similarly, the head of Liberty, the civil rights lobby, recently argued that without human rights law, ‘there is very little to stop popular governments from introducing legislation that empowers themselves rather than those they serve, or even from undermining the democratic process itself’. Which seems to suggest that the biggest menace to the democratic process is posed by ‘popular governments’, while its only protectors are judges, lawyers and lobbyists. Different shades of the anti-democratic interpretation of rights can now be found across the political spectrum.
Contrast this with the impulse behind the US Bill of Rights. It was written into the American Constitution in the aftermath of a popular revolution, as a clarion call to defend popular democracy against autocrats and tyrants of every stripe. It is a product of its turbulent times, infused with the spirit of revolution and what might now be called people power. By contrast, any bill of rights drawn up and passed into law in the timid, bloodless political culture of today would be a conservative measure that could only act as another barrier for any attempt to break the stale consensus.
The discussion of rights has become so misleading and degraded – meaning everything and nothing, encouraging activist judges and passive citizens – that we may need a new language to express new demands. The constant coupling of ‘rights and responsibilities’ by Blair and Cameron alike sums up the problem. In any free society, there can be no such linkage, since once you attach conditions or ‘responsibilities’ they cease to be universal rights and become privileges to be granted to those who obey orders.
I prefer to talk about democratic liberties and freedoms rather than rights today, although those too can of course easily be turned into empty slogans. But if the demand for real freedom and democracy is to be put back on the agenda, we shall have to start by breaking up any tablets of stone that others would tie like a dead weight around political debate.
Mick Hume is editor of spiked.
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