Two cheers for the Tory war on human rights

On Friday, the UK Conservative Party caused a furore with its proposals for changes to Britain’s human-rights laws. It was frontpage news, and the tabloids went to town. ‘End of human-rights farce’, said the Daily Mail; ‘Human-rights madness to end’, said the Daily Express; the Sun even referred to ‘the hated Human Rights Act’. On the other side of the human-rights debate, the former Conservative attorney general, Dominic Grieve, who was sacked in July’s reshuffle, described the proposals as ‘almost puerile’, and a Guardian editorial defended the Human Rights Act against the Tories’ new proposals, calling it ‘a civilised and a civilising law’. Human rights, it seems, are today considered either toxic or the hallmark of a civilised society.

The key point to grasp about human-rights laws is that they are gateways for judges to play a political role. Under existing human-rights law – as established in the Human Rights Act, which incorporates the European Convention on Human Rights into UK law – members of the public can take public bodies to court for failing to respect or uphold their human rights. Once a person’s grievance against a public body gets through the gateway, it becomes a judicial function to determine whether the body is or isn’t in breach of human rights. This decision will be made by judges exercising an extraordinary degree of latitude. The political gateway function explains why views on human rights tend to be polarised. The human-rights lobby is wary of democracy, lest the majority should oppress a minority, so it sees the judiciary as a necessary means of fettering majoritarianism and of safeguarding civilised society. On the other hand, vesting judges with a political role is something that many people find wrong in principle.

Even if the point of principle is ignored, the recent history of judicial political interventions has caused many to question whether judges should have been given such formidable powers under the Human Rights Act. The human-rights lobby has cheered each time another issue has passed through a human-rights gateway to be overseen by judges. Assisted suicide, extradition, care-home admissions, local-authority domiciliary care, prisoners voting, suing the Ministry of Defence, suing the police and welfare benefit reforms are just some of the many issues that the judiciary is now empowered to rule on under the rubric of human-rights law.

A number of recent policies that were, effectively, created by these judges have been received as absurd. The best known absurdity being the recent ruling that UK law on prisoner enfranchisement is unlawful and, say the courts in Strasbourg and the UK, should be changed. But there have been many other examples of problematic human-rights judgements, such as: when the courts have claimed that dementia sufferers receiving good care are living in ‘gilded cages’; when the courts allowed the police and the Ministry of Defence to be sued for negligence; and the attempts by some judges to nudge parliament to legalise assisted suicide.

It was clearly time for a backlash. The Conservative Party has recognised that human-rights laws have grown like Topsy and need to be reined in to establish an appropriate demarcation between politics and law. To this end, the Tory policy takes aim at the European Court of Human Rights (ECHR), which has meddled in so many political issues. The Tories are proposing that the ECHR’s rulings should only have an advisory status. And if this arrangement proves to be unacceptable to the ECHR then, the policy paper says, ‘the UK would be left with no alternative but to withdraw from the ECHR’.

But it isn’t just judges in Strasbourg whose powers the Tories propose to clip. The current practice whereby almost anyone with a grievance against a public body can turn it into a human-rights claim would be tackled with four measures affecting UK judges. Firstly, the Tories propose to prevent acts of parliament from being effectively rewritten by judges. Secondly, they propose to limit the use of human-rights laws to ‘the most serious cases’. Thirdly, rights will be balanced against responsibilities, so that, for example, a foreign national who takes the life of another person will not be able to resist deportation by relying on the human right of respect for family life. Fourthly, human-rights laws will be limited to dealing with issues arising in the UK, so as to prevent British armed forces overseas from being subject to persistent human-rights claims.

The human-rights lobby responded with apoplexy. And, in their attempt to shoot down the Tories’ plan, human-rights proponents used the arguments they are most comfortable with: legal ones. A string of practising and academic lawyers claimed the proposals were legally incoherent. Within 36 hours of the Tory announcement, the Labour Party deployed its big bazooka: an opinion from two ‘eminent QCs’ from Matrix Chambers who claimed the proposals were ‘wholly unworkable, legally contradictory and inherently inconsistent’. The implication of these legal critiques is that Britain, a supposedly sovereign state, should not be allowed to have an elected government that has the power to rein in human-rights law. It is a telling feature of the human-rights lobby that it is quite comfortable with the anti-democratic stance on which its legal arguments are founded.

No doubt the Tory proposals would give rise to legal issues, although it should be noted that Britain’s best-known commentator on the law, Joshua Rozenberg, said the proposals were ‘legally coherent’. Far more interesting, however, are the political principles that inform the Conservative proposals.

From a political perspective, the proposals are muddled. Human rights either have a special constitutional quality or they don’t. The European Convention on Human Rights, which the Tories propose to retain in a new British Bill of Rights and Responsibilities, is aimed at setting out rights that should always be applied. The Conservative proposals attempt to square the circle. On the one hand, the policy claims that ‘protecting fundamental human rights is a hallmark of a democratic society’, and yet, on the other hand, the Tories propose to deny these ‘fundamental human rights’ to persons with human-rights violations that are not deemed ‘serious’, or to claimants who have breached their responsibilities.

This muddled thinking disappears once it is accepted that today’s notion of human rights do not warrant a special constitutional status. Contrary to what the Tories claim, human rights are not ‘a hallmark of a democratic society’. There are certain rights that may warrant a special constitutional status, namely rights that constrain the state’s power so as to ensure the liberty and freedom of the citizen. These are civil and political rights such as free speech, the right to a free press, freedom of conscience, the right of association, the principle of innocence until proven guilty, and the right to have any guilt determined by a fair process. Each of these rights, in a democracy, could have a special constitutional status on the basis that without them democracy is abridged.

But the human rights that have developed under the ECHR do not underpin democracy. Take for example, control orders, or TPIMs (Terrorism Prevention and Investigation Measures) as they are now. It is an affront to democracy that anyone can be held under house arrest without being found guilty of a crime. It is a power that the state in a democracy should not possess. Yet, despite numerous human-rights challenges to control orders, the notion of indefinite house arrest for an innocent person was found to be compatible with human-rights laws. Following various human-rights challenges in 2007, the then minister of state for security, Tony McNulty MP, was correct to claim that the courts have ‘endorsed the principles of the control-order regime’.

Or, take the case of free speech, which John Milton famously described as the liberty ‘above all liberties’ and which is appropriately codified in the American Bill of Rights, whereby ‘Congress shall make no law… abridging the freedom of speech, or of the press’. Human-rights laws have not prevented parliament or public bodies from abridging freedom of speech. They have, for example, upheld hate-speech laws; failed to prevent the exclusion or deportation of religious fanatics; and have allowed for the banning of allegedly anti-gay Christian adverts.

Instead of underpinning democracy, human-rights laws undermine it. Far from constraining the state to make democracy possible, human-rights laws seek to transfer issues from the political sphere, where they are subject to democratic accountability, to a legal sphere that is beyond democratic accountability.

A politically coherent human-rights proposal would recognise that human-rights laws are inherently problematic. And it would recognise that, whereas there are some civil and political rights that are hallmarks of a democratic society, the human rights that have developed under the ECHR certainly do not have that required quality.

We must brick-in the human rights gateways so as to deny judges the ability to play a political role. The new Conservative proposals, however, argue instead for them to be narrowed, to be tilted in a different direction, and for the gatekeepers to be UK judges rather than European ones.

Despite its political flaws, the Tory policy could sound the beginning of the end for the human-rights discourse that has developed almost without challenge over the last decade or so. The human-rights lobby has rarely been challenged on its open-ended theory ‘that every human being is entitled to fundamental rights simply because they are human’. This ‘theory’ allows its adherents to widen the gateways ad nauseam.

Having, since 2000, encouraged judges to create so many ‘fundamental rights’, the human-rights edifice stands discredited, and could easily topple. Even signed-up members of the human-rights lobby find it increasingly difficult to justify many human-rights judgments which stray away from issues of ‘fundamental rights’ and which express contentious political perspectives.

The human-rights discourse has always been an elite project of the middle class: lead by lawyers, championed by some judges and cheered on by campaign groups, all of whom have little purchase with the rest of society. As one of the project’s leading lights, Professor Francesca Klug, pointed out: ‘The reality is that it [the Human Rights Act] has never been sufficiently “owned” by British people as truly “theirs”.’

As the human-rights lobby has grown, the gateways through which judges can make laws, with little or no popular support, have widened. It’s time that these gateways were closed. It’s possible that the Tories’ latest proposals for changing human-rights laws could, despite some muddled thinking, be the beginning of the end for the human-rights discourse. In the cause of democracy, let’s hope so.

Jon Holbrook is a barrister based in London. He was shortlisted for the Legal Journalism prize at the Halsbury Legal Awards 2014. He is speaking at the debates Do we need a British Bill of Rights at Foyles Bookshop, Charing Cross Road, London, tonight, and Judge rule: is the law taking over politics? at the Barbican on Saturday 18 October, as part of the 2014 Battle of Ideas festival. Follow him on Twitter: @JonHolb