Say it loud: I’m a ‘human-rights sceptic’ and proud
Anyone who values liberty should be a card-carrying ‘sceptic’ of the European Court of Human Rights.
When Shami Chakrabati, director of British lobby group Liberty, appeared on BBC Radio 4’s Today last week to argue against proposed reforms that would see far fewer cases going before the European Court of Human Rights, she branded her opponent, Dominic Raab MP, a ‘human-rights sceptic’. Such is the confidence of the human-rights lobby today that it has adopted a tactic established by climate-change activists: accuse your opponent of having committed a thought crime with their arguments, which they will then – as Raab did – be forced to deny vehemently .
It is time that such swaggering confidence was punctured. The human-rights framework that has developed in Europe, including the UK, over the past 60 years – built on the European Convention on Human Rights – is a dehumanising, anti-democratic system of law, deserving to be bulldozed at the earliest opportunity. It is time that liberal opponents of the human-rights system followed in the proud tradition established by homosexuals and hip-hop artists by re-appropriating the language used to keep them down: Sista, it’s time liberals were proud to be ‘human-rights sceptics’.
And I mean real, proper, balls-in-hand sceptics. It’s time that the acceptance of human rights as our standard for freedom is interrogated with a view to exposing its illiberal assumptions. Of course, the idea mooted by the UK Liberal-Conservative government predictably falls short. The reforms, to be debated at an international conference in Brighton next month, propose that no case would be considered by the European Court unless a national court has ‘manifestly made an error in its interpretation of the convention’, or if the case ‘raises a serious question about the way the convention is interpreted or applied’. The proposals follow high-profile cases in which the government has been prevented from doing what it wants to do by the European Court. Most recently, the wigged up saviours of humanity in Strasbourg have prevented the deportation of radical Muslim cleric Abu Qatada and forced the UK government to consider giving prisoners the right to vote.
You don’t have to be a little Englander, or even right wing, to recognise that it is an affront to democracy that unelected and completely unaccountable judges, who have absolutely no democratic mandate, are able to override the decisions of elected representatives. It is appalling that European judges can make significant political decisions over a body of citizens across Europe to whom they will never have to answer.
But there is a more fundamental reason that liberals should be sceptical of human-rights law: because it makes us all less free. Human rights are not ‘rights’ in a liberal sense at all. They bear no resemblance to the ‘rights’ fought for by the radical liberals of the English Civil War, or the French and American revolutions, which sought to limit the power of the state and protect the autonomy of citizens. Instead, human rights treat people as fundamentally vulnerable and in need of state protection. This view of human vulnerability, in the eyes of the human-rights lobby, justifies the granting of absolute power to the state to set the boundaries of freedom.
Take, for example, the ‘right to a private and family life’ protected under Article 8 of the European Convention on Human Rights. The courts will not consider a claim under Article 8 unless it is convinced in the courtroom that you have a ‘family life’ worth protecting. How the courts have defined ‘family life’ for the purposes of Article 8 is laughably antiquated. In 2002, the courts ruled that ‘family life’ does not exist where a relationship between parents and their grown-up children is ‘only emotional’, in that the children are no longer economically dependent on their parents. Neither are unmarried parents likely to be considered a family, unless they maintain sufficient levels of contact with their children. How can any ‘liberal’ support the idea that your family life is only worthwhile if it conforms to what the state decides a family should look like?
Or take Article 10, which purports to protect our freedom of expression. Of course, the very concept of ‘freedom of expression’ owes its existence to radical liberals like John Stuart Mill and Voltaire, who argued that there can be no exceptions to free speech, otherwise you do not have free speech at all. But human-rights lawyers will tell you that Article 10, along with most other human rights, is a ‘qualified right’ because there is a long list of conditions under which the state can interfere with it. This list includes where it is necessary in the ‘interests of public safety’ or for the ‘protection of health or morals’. Such broad qualifications mean that as a means of limiting state power, ‘qualified’ human rights are all but useless.
In fact they are worse than useless. History has shown that this qualified, state-sanctioned notion of freedom makes human rights a force in opposition to the civil liberties fought for by the radicals of the past. Since the European Convention on Human Rights was made directly applicable in UK law by the Human Rights Act 1998, it has approved the introduction of reams of draconian anti-terror legislation, including new powers of surveillance under the Regulation of Investigatory Powers Act 2000 that give local authorities increased powers to spy on their citizens. The Human Rights Act has also allowed new legal bans that limit how we can use public space. Rather than promote freedom, human rights have fostered an environment in which state interference has become commonplace.
This is why anyone who believes in freedom should be a card-carrying, philosophical ‘sceptic’ of the European Court of Human Rights. We should be sceptical of unelected judges making political decisions; sceptical when human-rights lawyers tell us we are vulnerable plebs in need of the state’s protection and, perhaps most importantly, sceptical of the very ideological foundation of the human-rights framework: the idea that the state should decide for us what freedom looks like.
Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.
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