The dubious gift of human rights

On 3 September 2013, the European Convention on Human Rights and Fundamental Freedoms marked its sixtieth anniversary. This led to a predictable chorus of praise from a retired European Court judge and human-rights organisations like Liberty, arguing that the Convention is a thoroughly British affair, and that its critics should be squashed. Is this justified?

When the idea of a European rights instrument was originally proposed, following the Second World War, the British reaction was decidedly muted. The sceptical UK foreign secretary at the time, Ernest Bevin, was against a ‘European idea’, and also against a European court of human rights (1). But the model of a Council of Europe did find favour. Its founder members were Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom.

Once this was approved, the idea of rights for all was revived. Initially, it consisted of the briefest shopping list of ideals, such as ‘freedom of speech’.

Early on, tensions between the UK and other states were evident. The UK, with its system of judge-made common law, was at odds with other countries’ civilian traditions, based on codified laws. It believed that human rights should be drafted in detail, whereas continental delegates felt that rights should be couched in general terms, leaving member states to work out how to give effect to them in practice.

After much wrangling, the participants agreed a hybrid approach, listing specific rights and then spelling out (in loose terms) the limitations that could be placed on them. The states were acutely conscious that a failure to agree would look bad.

The result is that there is little uniformity between the different articles of the Convention. And there are some significant textual differences between the two languages of the Convention: for example, Article 1 in English requires states to ‘secure’ the rights listed, implying positive action, whereas the French text simply asks states to ‘recognise’ them.

Lord Jowitt, Labour’s lord chancellor at the time, voiced concern: ‘The document is a compromise, as can be seen in every single clause.’ An internal government minute describes it as ‘very woolly and open to various interpretations’. Sir Hartley Shawcross, the Labour attorney-general who prosecuted at Nuremberg, said: ‘I have never attached great practical importance to the proposed Convention… and do not think… that its existence would act as a… barrier against the encroachments of totalitarian restrictions’. Another senior Labour figure, Herbert Morrison, wrote that he ‘had always been sceptical about the value of these conventions on human rights’.

It’s ironic, then, that in 1998 the New Labour government spoke of ‘bringing rights home’ when it introduced the Human Rights Act. The slogan suggests that the UK had no rights to speak of. That was inaccurate. Not only had our common law developed a robust system of rights – relating to property, freedom of the person and control of executive action – but European Community law had also introduced shoals of rights, with laws on free movement, employment and equality and data protection.

The New Labour human-rights project was an elite affair, spearheaded by a legal coterie, including a bevy of peers. Human rights, for their adherents, constitute a secular religion; and, like any religion, it deals in revealed truth.

This lofty approach was evident at a high-level seminar in May this year, ostensibly about whether the UK should secede from the Convention. It was hosted by Freshfields, a City law firm, and organised by the Human Rights Lawyers Association and the Bingham Centre for the Rule of Law.

Despite its provocative title, A UK Without Convention Rights: Freedom or Danger?, all the speakers (including a judge from the European Court of Human Rights) were Convention proponents. In the ensuing debate, one barrister asked: ‘Why do we need to persuade ordinary people of the virtues of the Human Rights Act?’

In truth, incorporation of the European Convention has not served us well. Its first legacy, as the eminent Australian jurist Justice Heydon says, is a club of human-rights lawyers, whose ‘members compete in revealing to each other their superior ingenuity and human-rights sensitivity. It is a contest of compassion and cleverness.’ (2)

Justice Heydon and others also stress that the rights bestowed by the Convention are uncertain in definition and unpredictable in their application. This generates endless possibilities for legal argument and lawyers’ fees. Such porousness costs the country a fortune: in legal aid, in costly lawsuits, in risk aversion, and in court time spent poring over masses of opaque European Court rulings.

The case of Al-Skeini in the European Court in 2011 is an example of human-rights activism by British lawyers, claiming that the European Convention should have extra-territorial effect in non-European states, which are not signatories to the Convention. Al-Skeini was an Iraqi shot by British troops during a patrol in Iraq.

The complaint was not that he had lost his life, which to the uninitiated might seem more important, but rather that there had not been a ‘sufficient investigation’ into the circumstances of his death. This was alleged to be a breach of the ‘procedural’ requirements of Article 2 of the Convention, which guarantees a right to life. In a tendentious ruling, the European Court decided that the Convention could have extra-territorial effect, if a member state was engaged in security operations abroad and the foreign state had no effective government of its own.

The UK government has now spent nearly £20million pounds on the Al-Sweady inquiry, another investigation into loss of life during Iraq operations. Nearly £4million of this went on lawyers’ fees. The total cost is estimated at £25million.

Human rights have also had ramifications for domestic law. Take a case like Rabone in 2012. It concerned a young woman who was admitted to a mental hospital as a voluntary patient, suffering with depression. She was given a period of home leave, and then killed herself. Her suicide was tragic, and the hospital accepted that its decision to let her leave fell below accepted psychiatric standards of care. But the family’s lawyers argued that the courts should clarify the scope of the state’s duty to protect life under Article 2 of the Convention.

Although Ms Rabone’s estate settled for £7,500, her parents continued to sue, arguing that they had a derivative claim under Article 2. So the case wound on expensively all the way to the Supreme Court, by which time the parents’ damages had been set at £5,000. Various judges penned erudite legal opinions, with the net result that the parents’ right to claim nominal damages was upheld. Many would see this as a Pyrrhic victory.

What the human-rights club is less forthcoming about is how human rights are increasingly used as a pretext for expanding the state’s power over the living, ostensibly to protect them from possible abuse. Recently, the UK government held a consultation on whether social workers should have a right of entry into people’s homes on ‘safeguarding’ grounds. Ninety per cent of health authorities and 72 per cent of local authorities responding thought they should, but 77 per cent of the public were opposed. Yet the Equality and Human Rights Commission supported the proposal.

As David Chandler has argued (3), human-rights proponents treat individuals not as autonomous rights-bearing subjects, but as hapless victims in a fallen world. Despite their claims to empower the excluded, what they really offer is more state regulation, as opposed to personal freedom.

Barbara Hewson is a barrister in London.