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.
(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