by Barbara Hewson
UK justice secretary Chris
Grayling’s call for the repeal of the Human Rights Act 1998 has led to claims
that he is betraying British values, and damaging Britain’s reputation abroad.
But it is time for a grown-up debate about what, exactly, this piece of
legislation has done to enhance our civil liberties and fundamental freedoms.
The public, who are not stupid, look askance at a
statute which requires judges to block the deportation of those who are said to
pose a risk to national security, or of criminals who invoke a right to family
life. While not au fait with the arcane legal detail in these decisions, they
have an uneasy sense of a prevailing misuse of the language of rights.
A number of respectable commentators are
rights-sceptic, for reasons that deserve proper consideration, instead of being
dismissed as heretical. In 2010, the economist John Kay penned a withering op-ed for the Financial
Times, entitled ‘Not all rights should be defended to the death’, in which
he spoke of the degradation of rights:
‘Confusing rights with things that are desirable is
not harmless. In the past decade, we have seen the wider and wider use of the
language of rights combined with a significant erosion of traditional and truly
fundamental rights… The extravagant assertion of “human rights” by lawyers
chasing briefs has created an environment in which many people treat the phrase
with cynicism or even amusement. The misuse of the language of rights
undermines the status of all rights. We should create rights sparingly, and
defend them tenaciously.’
A fundamental problem with the prevailing
culture of ‘rights’ is that they are not really rights at all, but a tool of
social control: a far cry from civil liberties, as traditionally understood.
They could not be more different from the Common Law concept of individual
liberty promoted by the authors of the American Constitution, for whom
government was a means of securing that liberty.
The Common Law is founded on two key concepts: the
Lockean notion of ‘property’ (meaning ‘lives, liberties and estates’), and
contract, whereby people come together legitimately. The Common Law approach is
that people are born free, and the powers of government derive from the consent
of the governed (1).
As Professor David Chandler explains: ‘For the
founders of political and civil-rights theory, rights could only be guaranteed
by the subjects of the rights themselves. If it could not be protected, or
exercised, by its bearers, then it could no longer be a right, an expression of
self-government. Democratic rights theorists developed this concept of the
active and self-determining subject of rights in opposition to pre-modern
hierarchical conceptions of rights as privileges bestowed on the deserving from
above.’ (2)
By contrast, he argues, the human rights critique ‘is
in many ways a stunningly confident attack on the political sphere under the
cover of ethics and morality’. He cites Arendt, for whom the notion of human
rights implies dependency on others - as opposed to national rights of
citizenship. Human rights depend on the beneficent nature of state protection,
as guarantor of individual rights. They define the human as lacking in
autonomy, and in need of help. The result is like putting the fox in charge of
the hen-coop.
Chandler thinks as much, arguing that, ‘There is
nothing progressive or empowering about human rights claims in themselves and…
if the enforcement and protection of these claims relies on external and
unaccountable actors, then existing informal hierarchies of power will become
increasingly formalised, while formal protections of the rights of
self-determination and self-government will be undermined.’
This view is well-founded. To illustrate, one need
look no further than a revealing 2008 publication advertised by the Equality
and Human Rights Commission, and published by the Legal Action Group, entitled Human
Rights Act Toolkit. Its key message is that the Human Rights Act is ‘a
valuable management tool’.
It says of the Act:
‘It can support public-sector staff to:
- ensure
that the rights of the individual are balanced against those of others
(including staff) and the interests of the community;
- understand
where resources may need to be targeted by identifying people whose
perspectives might not previously have been considered;
- demonstrate
to people using services that the decision-making process is objective;
- assess
and manage risk, protecting organisations against allegations that they
have not considered people’s rights.’
Note how a claim that human rights may have been
violated is downgraded to ‘allegations that they have not [been] considered’.
In this dystopian new world, it appears that rights are not effective, only
‘considered’. In other words, rights have no real meaning, even for their proponents.
The mechanism by which rights under the Human Rights
Act 1998 are ultimately enforced is by way of court proceedings. But the Act’s
wording is vague: courts and public authorities are simply enjoined by section
6(1) not to act incompatibly with a Convention right. This introduces a large
element of subjectivity into what such incompatible action might mean, in
practice.
Contrast the no-nonsense wording of the Fourteenth
Amendment to the American Constitution, concerning citizenship rights, which
begins:
‘All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United States and
of the state wherein they reside. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States;
nor shall any state deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.’
The spectacular ineffectiveness of human rights in
practice can be seen in cases like that of Ms E, the anorexic, whom the Court
of Protection ordered to be forcefed against her will last year, even though
the medical evidence was that this could kill her. The prognosis for recovery
was put as low as 10-20 per cent. Yet the court concluded that this warranted
overriding her rights under Article 3 of the European Convention (the right to
be free from torture and inhuman or degrading treatment) and Article 8 (the
right to physical and moral integrity). This was said to be justified in the
interests of her right to life under Article 2. Ms E’s state-appointed lawyers
did not appeal, seemingly.
One does not have to be unduly rights-sceptic to
conclude that, if someone in Ms E’s position could not fend off unwanted state
intervention of a particularly prolonged, invasive and unpleasant kind, then
her rights were not worth having. As Oscar Wilde observed over a century ago, a
‘right’ which can be dispensed with by a family judge sitting in chambers is
not a right at all.
The emerging Conservative project of repealing the
Human Rights Act and replacing it with a homegrown Bill of Rights is not
absurd, as its critics claim. It is timely.
Barbara Hewson is a barrister at
Hardwicke in London.
(1) Roger Pilon, “Lawless Judging: Refocusing the
Issue for Conservatives”, Vol. II, The Georgetown Journal of Law and Policy
(2001) pp. 5-22, p. 9
(2) ‘The Limits of Normative Human Rights Theory’, The
International Journal of Human Rights, Vol 5, No 4 (Winter 2001), pp.
72-89, p. 82-4. And see David Chandler, ‘Ideological (Mis)Use of Human Rights’
in Michael Goodhart (ed), Human Rights: Politics and Practice (2nd ed),
Oxford University Press, 2012
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