The Human Rights Act as a constitution of liberty
Guy Herbert, best known as the general secretary of NO2ID but writing in a personal capacity, defends the Human Rights act as necessary as a bulwark against the state when so many of the traditional defences have been eroded.
I am here to defend the Human Rights Act. It is not an idealistic defence but a pragmatic defence, rooted in historical context. Should classical liberals support the Human Rights Act against repeal? Do we need it? My answer is yes.
Our reactions to phrases become readily conditioned. And so it has been with "human rights". Let us remember for a moment that the full title of the agreement that is under siege here is the Convention for the Protection of Human Rights and Fundamental Freedoms. If it were called the Fundamental Freedoms Act would it be as easy to undermine?
Sad to say human rights do have a bad name, and they have that bad name for good reasons. Their strongest proponents often do the most harm to their reputation - not because of the legal content of what they say, but of their approach to the law.
This comes in two forms which sometimes overlap: the rarer is soft revolutionism from the far left—human rights as a transitional demand. This makes human rights a movement more than a doctrine—a means to control the terms of any political debate.
More common is a not entirely conscious belief that human rights and the Human Rights Act in particular embody the truth, the whole truth and nothing but the truth of how states should treat people. It's a sort of human-rights fundamentalism, a desire for revealed wisdom in which "but that is contrary to Art 6" is a morally conclusive statement.
It' s bound up with humanism, and instantiates the felt values of the bien pensant left. There’s a parallel here with common US attitudes to their constitution, treated as Holy Writ, though those are found more on the right than the left.
I fear that in particular the venerable National Council for Civil Liberties, now Liberty, has become something like the Church of the Human Rights Act. All its activity (most of it still valuable) is now predicated on the overriding importance and superordinate moral power of the Human Rights Act – taken to be proof that the social assumptions of the liberal left are correct.
There are also those for which the Act was a crowning achievement of Tony Blair, showing how the Labour party in government was committed to the freedom of the people, unlike the brutish Thatcher and Major regimes. These last need not detain us long, though their tribal pique may well spur some Conservative opponents.
The enemies of the Act have a point in their disdain for its claque. But they go rather further than that, and repudiate the law itself. Moreover most reject not just the domestic law (such as it is) but the underlying convention, of which Britain has been part since 1950. The Act for them is merely an enabler for the unwelcome jurisprudence of Strasbourg to get into English law (Scots law not much considered). A British Bill of Rights they say will stop all such civilian nonsense.
What's wrong with it, do they say?
They say it is foreign.
They say the wrong people have rights.
They say we need ‘a better balance between rights and responsibilities’.
They say it is concerned with trivia - or with too many things - and gets in the way of common sense.
They say it allows 'activist judges' to make law.
They say it tramples on the sovereignty of parliament.
Most interestingly for my argument, they say that Britain doesn't need it because of our own much deeper constitutional freedoms.
I have my own complaints against the Act and the convention that it embodies.
Neither is really strong enough in its protection of the individual from the state. The Act doesn’t do some things one might hope from the point of view of rule of law: it does not clearly override other legislation, let alone strike down incompatible law; it doesn’t make Strasbourg an appeal court within our system or its decisions directly applicable here.
It does, on the other hand, extend the scope of human rights actions way beyond bodies exercising state power to all those dealing with the public—and thereby hands some new power to the state, allowing human rights to be used as a sword as well as a shield. [i]
The Convention is too riddled with state get-outs “necessary in a democratic society” - which have given rise to the canting doctrine of proportionality that riddles all the legal discussion of human rights questions. And it fails to mention some critical liberties directly at all (which would matter less if that did not mean the Church of Human Rights has now forgotten them).
It's fairly feeble.
But it is something. I'd argue that we need to strengthen and clarify the application of the Human Rights Act. What are we to make, as believers in a liberal rule of law, of those who want to dispose of it?
Other commentators have said that Conservative plans (such as they are) are "legally illiterate". That may be so. But such commentators are inevitably communicant members of the Church, preaching to the choir. To the right, press and public alike that just sounds like technical waffle, covering special interest. Technical problems can be fixed, usually. My differences stem from first principles.
Foreign? So what?
A good thing is a good thing, and a bad one a bad one, wherever it comes from. Hatred of the Eurpean Court of Human Rights does seem to be tied up in some people's minds with dislike of the EU and a sense of nationalist resentment of international institutions generally. But I say, take institutions on their merits. Nationalism is unprincipled and lights arbitrarily what it calls familiar - and calls 'foreign' what it doesn't like. Actually, Great British institutions, from the royal family to fish and chips, often turn out to have foreign origins when you look closely.
The wrong people have rights?
If that is your objection you have missed the point of rights, which is the defence of the individual in the face of attack. If you can strip someone of defences by declaring they are a wrong'un, then none of us is safe.
A balance of rights and responsibilities?
That is if anything worse. It misunderstands what freedom is: not a privilege to be granted on condition of good behaviour, but something that can only be taken away - if at all - on condition.
Against common sense?
This is a variant of "the wrong people have rights". It says some have the privilege to prejudge what is important and to subordinate some people's priorities to others.
Judges making law?
Well I trust the same people will be discarding that Great British gift to the world, the common law system. The extrastatutory decisions of such 'activist judges as Sir Edward Coke and Lord Mansfield', had no business interpreting parliament or precedent. Let's while we are at it chuck out the Appeal Court and House of Lords judgments that found ministers' or officials' behaviour unreasonable. "Activist" in this context is just a boo-word. Judges decide the cases brought before them - what else does one expect them to do? If they make decisions you don't like, then challenge the reasoning and distinguish your case. Otherwise tough.
Trampling on sovereignty? I should bloody well hope so!
The whole point of a constitution, of rule of law, is to constrain absolutism. And absolutism what is meant by sovereignty here—be in no doubt about it. The complaint is that parliament—or the state speaking through parliament—ought to be able to do anything at all, however destructive of individual liberties.
With the greatest respect... no, with no respect at all - I don't agree. “Absolutism begins at home”, is not a motto any liberal should support.
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Look for a minute at the context of our (Britain and other Western European countries’) drafting and adopting of the convention: the point of doing so. This is something both its acolytes and enemies neglect. It didn't come from nowhere. It was, as constituting documents usually are, an attempt to define and stabilise an order already won by violent struggle. In the specific case, this was the allied victory in the Second World War, and the aftermath. The contents of the convention are direct reaction to the abuses of the totalitarian states of middle of the 20th century.
Argumentum ad Hitlerum has a poor record, but it is unavoidable here. One can go through every article (I won't - I leave it as an excercise for the reader) of the convention, and see the shadow of the lawless Nazi regime and its abuses. And further in the background, but still in the picture, Joe Stalin, who was still alive and a dominant figure in the world as it was drafted. The high contracting parties were ostentatiously saying: 'we're not fascists, Nazis nor Marxist-Leninists'.
Let's not resist the cheap shot that that Nazis would have had no truck with the Human Rights Act. They would have hated it not only because it specifically tailored to spite them, but because it represented rootless cosmopolitanism not Volkisch values; because the asocial should not have rights; because your rights should in any case depend on your contribution to the Fatherland; and because nothing should stand in the way of the supreme Will to Power.
In 1950, Britain may have been less in need of reassurance that it was not a totalitarian state than many of the other signatories. But the most interesting claim of the critics is that because Britain is intrinsically a free country, this is still the case. At best this is romantic nonsense. Even in the ‘50s the British state was bulking up hugely. It was then we saw the beginning of the widespread use of judicial review as a means - from British common law - of restraining the arbitrary official power that before the war Lord Justice Hewart had called "The New Despotism". [ii] "We" supported the ECHR then not merely to rebuke Uncle Joe but because we had seen how fragile liberty was in dozens of civilized European States.
Sixty years later, the interest of states everywhere in the detail of the lives of their citizens has bloated.
Britain is no longer obviously a free country. In which support for liberty on behalf of our fellow citizens and our representatives can be taken for granted. We have reached a state of mind in which "the government should do something" is a first reaction to the most factitious scandal. In which an absolute majority can be found in an opinion poll to be in favour of banning the almost certainly harmless activity of vaping in public places. [iii]
And though a liberal is hard put It is not even in the same sense a representative democracy.
And it has accelerated. British state is certainly not the (domestically) limited creature it was in 1950 - it has far more power than it had in 1997. Technology gives the state more information, and with it more conviction of Whitehall's omniscience. And the machinery of legislation has changed, too. Parliament has less influence. Much legislation passes as "framework legislation" giving powers in very broad terms to be filled in by regulations. More is very broadly drafted, leaving it in the discretion of police and other enforcers who will be prosecuted when many are technically guilty. And all of it is hustled through timetabled legislation. Six guillotines under the decade of the aforementioned Thatcher regime were a scandal to her opponents. Everything since Blair has been guillotined and knived. [iv]
Yet opponents of the fairly feeble Human Rights Act are not proposing to weaken the executive branch, just the law that stands in its way. A ravenous Whitehall beast will have a little less chain, and disproportionately more power, and it is presented as reverting to an earlier constitutional age. This is at best deluded: like suggesting you can book Concorde to New York next Tuesday. At worst the delusion is a perverse rejection of all we know about political institutions. It is a conceit that totalitarian power is fine, because it will be wielded solely by sympathetic thoughtful people like Mr Grayling, who will use it as the public wishes. And the public is always right.
Hayek wrote in The Constitution of Liberty of the development of the understanding of rule of law and the concept of a Rechtsstaat:
In most countries of the European Continent two hundred years of absolute government had, by the middle of the 18th century, destroyed the traditions of liberty... the main impetus for a revival came from across the Channel. But as the new movement grew it encountered a situation different from that which existed in America at the time or which had existed in England a hundred years earlier.
The new factor was the powerful centralized administrative machinery which absolutism had built, a body of professional administrators who had become the main rulers of the people. This bureaucracy concerned itself much more with the welfare and needs of the people than the limited government of the Anglo-Saxon world either could or was expected to do. [v]
In the last 100 years Britain has developed an absolutist government. And the fading of the culture of liberty and the growth of institutional power has intensified that. The state has become more absolutist in the nearly 20 years since the Act was passed. We may not want the Human Rights Act. But we do need it. It is not sufficient; the moral certainty of its fans may be irritating; but we do need it.
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[i]s 6(3)(b) says that a "public authority" includes "any person certain of whose functions are functions of a public nature"… this has been interpreted to create duties for business-owners, for example.
[ii] See Lord Hewart,The New Despotism (London: Ernest Benn Limited, 1929)
[iii] http://yougov.co.uk/news/2014/10/21/ban-e-cigarettes-indoors-say-public/
[iv] How it is held to “work” is set out by the present government, here: http://www.publications.parliament.uk/pa/cm201213/cmselect/cmproced/writev/programming/m99.pdf
[v] FA Hayek The Constitution of Liberty(London: Routledge & Keegan Paul, 1960) Ch.13