Jan Nedvídek wrote here in defence of Conservative proposals to repeal the Human Rights Act, explaining how, before getting “all angry and agitated”, we should take time to pause and appreciate the facts. However, his piece fails to situate the potential revocation in the wider context of Conservative plans regarding civil liberties: when considered in this manner, concern is a justifiable (and necessary) response.
Jan claims that the government is not proposing to “scrap” any human rights, and that the policy has “nothing to do with rights and liberties”, and that it is simply about “changing our relation with the European Court of Human Rights”. False; false; partially true.
Firstly, it is true that scrapping the Human Rights Act would not see a deletion of the concept of any of our fundamental rights; however, it creates the space for them to be modified, reduced, and made contingent upon the State’s will to provide them. Essentially, this removes the core pillars of human rights, namely their universality and indivisibility. A British Bill of Rights would give the state stronger interpretative provisions of what rights are, and the ability to change the threshold of classification as to what constitutes ‘serious’ matters. The Conservative manifesto promises that this will allow UK courts to strike out ‘trivial’ cases, yet procedures already exist to determine whether a case constitutes a rights violation. If a case meets the existing criteria – that is to say, it is classed as a contravention of human rights – I am unsure of quite how it could be labeled ‘trivial’.
Secondly, the Bill of Rights would incorporate the rights included in the European Convention, but “clarify” them to “ensure that they are applied in accordance with the original intentions for the Convention and the mainstream understanding of these rights”. What gives the Tories the just mandate to arbitrate the ECHR’s intentions? Furthermore, since when was appeal to the “mainstream understanding” a legitimate, sound and fair basis for the judgment of what rights are? Political philosophers have written for centuries about the dangers of the tyranny of the majority. While Jan will undoubtedly recoil at my use of such polemic language, surely you can understand my concern at the thought of vesting rights in subjective interpretation.
Thirdly, the proposed change in relationship is to “break the formal link’” between Strasbourg and domestic courts. Currently, Section 2 of the Human Rights Act requires that courts “take into account” judgments of the ECHR: the Tory claim that the ECHR can “force the UK to change the law” is only true insofar as Parliament must respond to judgments and align domestic legislation with international legal provisions. When, in the context of universal human rights, is harmonizing domestic penal codes with international legal standards a bad thing? The manifesto’s promise to “break the formal link” removes Parliament’s obligation to consider European Court judgments, the implication of this being that the UK has a mechanism to avoid international accountability for its human rights violations.
Finally, Jan states that “to claim that there is correlation between one’s membership of the ECHR and the extent to which civil liberties are protected is quite frankly factually incorrect”; quite the opposite, in fact. There may not be correlation between the enjoyment or realization of civil liberties and State membership of the ECHR, but it provides a mechanism by which individuals can hold their governments to account, facilitating appeals to an international body which can then mandate changes within the country. And, as an aside, Strasbourg is not a “foreign court”, it is an international one, with legal provisions and territorial jurisdiction that we signed up to. The European Court is our regional authority on human rights: to distance ourselves from that is to undermine the concept of universal human rights
The crucial weakness of Jan’s argument – and indeed my counter-argument – is that we do not have the draft for the new British Bill of Rights, and so cannot comment on what is in it. Notable is that Cameron reneged on his promise to publish it prior to the election, a move undoubtedly linked to the virulent criticism that the policy has faced from civil society and party members alike. However, in the absence of the Bill itself, we can briefly (this list is by no means exhaustive) situate it in a wider context:
- The current ‘Prevent’ strategy, revealed in 2014, has faced criticism for stigmatizing minorities, while Liberty Director Shami Chakrabarti noted that it ‘transform[s] us all into suspects – leaving the public no safer and everyone a little less free’;
- Home Secretary Theresa May indicated that she was ready to revive plans for the Snooper’s Charter, which faced international condemnation;
- David Cameron’s stance against encryption and privacy online caused international uproar, noting his willingness to endorse mass surveillance;
- Reports of Justice Secretary Michael Gove and Theresa May’s willingness to remove the UK from the European Convention on Human Rights have emerged, in which they refer to withdrawing as the ‘only solution’;
- The Bill of Rights would limit the territorial scope of rights protections, making them the preserve of the British and ensuring that ‘British Armed forces overseas are not subject to persistent human rights claims that undermine their ability to do their job’ (if that doesn’t set off alarm bells, I’m unsure what will).
Nobody is claiming that human rights “didn’t exist” before 1998, nor that this policy entirely “eradicates” our civil liberties. But I’m angry, I’m agitated, and crucially, I’m concerned about what the future may hold for human rights in Britain. What’s more? I think you should be too.
