Human rights: taking liberties, not protecting them

The Human Rights Act was passed in 1998, incorporating the European Convention on Human Rights into British law. Now, the newly elected Tory government, led by the new justice secretary Michael Gove, is planning to repeal it. Defenders of the act say that it has been a backstop against politicians’ attempts to infringe on our civil liberties – but that’s not true.

Back in 1998, there were not many critics of the Human Rights Act, but I was one of them. The campaigning group I was part of, Freedom and Law, had long campaigned against attacks on civil liberties. Back then, the media, politicians and police had been stirring up extravagant fears over law and order and had pushed through some draconian laws, from a clampdown on raves (defined by music featuring ‘a succession of repetitive beats’) to the banning of dangerous dogs.

At first, the Human Rights Act looked like a good idea. Like America, I thought, we would have a Bill of Rights, only it would be based on the European Convention on Human Rights (ECHR). Result! ‘Have you ever read the European Convention on Human Rights?’, a friend asked me. I hadn’t. When I did, I was astonished at what I found. When you look through the document, all the headline rights are there, from freedom of speech to freedom of conscience. But the killer blow is in the small print. Under each and every right in the ECHR there are myriad qualifications so broad they completely compromise every right the document claims to uphold.

For instance, the right to life, contained in Article 2, does not apply to the taking of lives in the course of prison escapes or ‘for the purpose of quelling a riot or insurrection’. The right to privacy, in Article 8, does not apply if it affects national security, public safety or economic wellbeing, if it involves disorder or crime, or if it threatens health or morals. Article 10, which enshrines freedom of expression, possesses even more qualifying exceptions, be it the possible threat free speech poses to territorial integrity, the keeping of confidences, or the authority of the judiciary.

When I became aware of the ECHR’s true content, I wrote an article critiquing the proposed Human Rights Act in spiked’s predecessor, Living Marxism. ‘In substance, the ECHR is a document that does not extend rights but restricts them’, I wrote. ‘The argument that the incorporation of the ECHR reflects a growing “human-rights culture” is wrong. Fearing that they will lose the argument for freedom if it is put before the public, [supporters of the bill] have sought to take that argument out of the public sphere altogether.’

Looking back, were those fair criticisms? I’m afraid to say they were.

The years following the passing of the Human Rights Act were not marked by a flourishing rights culture. On the contrary, the attacks on civil liberties increased. The Labour government that passed the Human Rights Act also pushed through a raft of draconian legislation, from anti-social behaviour orders in 1998 to control orders in 2005. (Control orders, which were part of the Prevention of Terrorism Act, greatly compromised the rights of defendants in criminal trials.)

Defenders of the Human Rights Act say that it does, at least, give power to the judiciary to block new and repressive laws proposed by parliament. The UK Supreme Court, which was established in 2005, has, indeed, challenged draconian government legislation in some cases. But this is a misleading way of looking at things. The truth is that by handing over the responsibility for defending civil liberties to the judiciary, the Human Rights Act has actually given the government license to push through more repressive legislation.

There is a division of labour between the Supreme Court and the government that allows this to happen: the government argues for restrictions on liberty in parliament, while the niceties of protecting the citizen are derogated to the courts. Far from creating a culture of liberty, the Human Rights Act has reduced liberty, turning it into a technical, rather than a political, question. Each time a new piece of illiberal legislation rears its head, the government pushes one way and the Supreme Court pushes the other. The outcome is a compromise that, nevertheless, places a substantial limit on individual liberties.

An example of this is the Supreme Court’s 2007 criticism of the government’s control-order proposal in the Prevention of Terrorism Act. The court said that imposing 18-hour curfews on suspects who had not been charged amounted to house arrest and an infringement on civil liberties. But, as is always the case, the court did not ask whether the control orders were an affront to liberty, but whether the measure was ‘proportionate’. After some haggling, the Supreme Court ruled that 14-hour curfews would be acceptable.

The Human Rights Act has done nothing to further the cause of civil liberties. Its provisions are so insipid that they actually impose greater restrictions on our rights. Worse, by turning the defence of rights into a procedural question, rather than a political one, the Human Rights Act has made the fight for civil liberties harder, not easier.

James Heartfield is author of The European Union and the End of Politics, published by ZER0 Books.