T7 – The Right Rights Model

Save the Human Rights Act!

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T7 intro – audio transcript

Why The UK Human Rights Act Works – And Needs To be Defended

What is the right way to defend and promote human rights via law?

In earlier tracks on this project I have argued that human rights are essentially a political concept and that their success depends on activism and the challenging of vested interests.  My tenth manifesto pledge declares that ‘Lawyers are wonderful for human rights – but as supporting actors, not the main act’.  What do I mean by this?

First, A Bit Of Bio

I grew up in Ireland and my first exposure to rights was as a student of constitutional law in Dublin.  We were all taught – and all automatically accepted – that judicial review of rights was a good thing.  The results of cases, or where the true public interest might lie, did not concern us: we were just sure that it was bound to be right for the judges to be able to oversee the decisions of the legislature on rights’ grounds.

It never occurred (to me anyway) that we were a bunch of future lawyers being taught by lawyers about the work of lawyers – naturally we assumed that the more power lawyers had the better!

When I came to teach in England I carried my prejudice in my backpack, mistaking it for truth.  I held forth to my undergraduate English students about how superior the Irish system was, how defective the ‘unwritten, right-less’ UK constitution.  (This was all long before the UK Human Rights Act of course, on which more in a moment.)

Then along came the miners’ strike, Wapping, the miscarriage of justice cases, Spycatcher and all the rest.  I was invited to be one of a small group of academics to spend the day with the then Lord Chief Justice, Lord Lane, and saw first-hand the kind of person that would enjoy the power as a senior judge I was arguing for in class.  Whatever the textbook theories about the rule of law and the protection of civil liberties, British judges were in fact little more than reactionary partisans in the series of highly politicised battles which were fought through the 1980s and which spilled over now and again into the judicial arena.

But if all the decisions of the English judges were illiberal and anti-progressive even within the system the UK already had, how could the answer to Britain’s constitutional problems (and of course there were a few) be to give them more rather than less power?

My inability to answer that question turned me into a judicial sceptic, first writing a book on the 1980s with my colleague Keith Ewing and then expanding our critique to cover the whole interwar period, in The Struggle for Civil Liberties.  We worked together to point out how illiberal the judges always were in the UK and (by implication in the second; explicitly in the first) how foolish it would be to entrust them with a new bill of rights to interpret.

Right Answers Vary With The Times

One of the main criticisms I make of human rights absolutists is their inflexibility, their inability to spot circumstances changing around them.  But antagonists of human rights need to be alive to the possibility that they are at fault in exactly the same way.

A chief purpose of social democratic politics is to secure a culture in which all are esteemed equally and given the chance to flourish as individuals: see track one again.  Historically this has been best achieved by committing to parliamentary sovereignty rather than to a bill of rights, in other words a constitutional system in which a democratically legitimised government has the power (via a disciplined party committed to social democratic values)  to transform for the better the society in which it finds itself.  This describes 20th century Britain, indeed much of what has been positive and beneficial about post war Europe.  (I discuss this further on common track four.)

But it is an approach that no longer seems to work.

There has been a catastrophic loss of confidence in social democracy and in the political parties that seem no longer believe in what they were set up to achieve.

The dehumanising force of the market is everywhere to be seen, demanding, dictating, imposing its will in a way that, were it not happening, we would dismiss as Marxist scaremongering.

Okay, let us accept that the old model of parliamentary sovereignty can no longer be relied upon to funnel social democratic benefits to the people.  But surely the response to this new reality cannot suddenly be that it is now right to hand everything over to the judges and just hope for the best?  If this was wrong twenty years ago, how can it have become suddenly right today?

That ancient cliché, about throwing the baby out with the bathwater comes to mind.

The Marriage Of New And Old Labour

Tony Blair’s first government, elected in 1997, was well aware of this problem.  The ‘new’ bit of Labour was impatient with the inability of old forms to deliver the outcomes to which it was committed. But ‘old’ Labour hung back, nostalgic for a parliamentary-inspired social democracy that it was reluctant to give up.

One of the main results of this tension was the Human Rights Act 1998, an early offspring of this marriage.  It has turned out to be a frail child frequently attacked and in constant need of nurturing.

But frail or not, it is a child  upon which – at such a bleak time for true human rights – a very great deal depends.

Why Does The Act Work?

It is the fate of successful innovation that it is very quickly taken for granted.

The beauty of the Human Rights Act is that it reconciles the demands of parliamentary government (and therefore democracy) with the moral imperative of human rights.  It does this by brilliantly dropping the usual superiority of the human rights advocate, losing the inflexibility that the term so often connotes and accepting that…

human rights are part of not above politics.

How does it do this?

  • By reaffirming parliamentary sovereignty: see sections 3(2) and 6(2).  Far from undermining legislative supremacy the Human Rights Act requires it.
  • By also insisting that while Parliament can breach legalised human rights if it likes, the courts should be allowed to say so albeit in a way that does not trump politics – this is the effect of section 4’s cleverly designed Declarations of Incompatibility, loud statements of disgust by the judges which however carry no instant legal effect.
  • By demanding that politicians think about human rights compatibility before they take a new Bill to parliament (section 19) and that they also reflect on every declaration of incompatibility that gets made, not necessarily having to implement but certainly having to think about whether to implement (section 10).
  • By requiring all public authorities to act consistently with the rights in the Human Rights Act (section 6) and then giving people who think they are victims of violations of the rights that are protected in the Act the chance to take cases in court to secure proper legal protections: section 7 through to 9.
  • By empowering the judges to really be creative when they are interpreting laws so as to ensure so far as possible that those laws are consistent with the human rights in the Human Rights Act: they can bend the meaning of words but they must not break them – if these words are unbendable, a declaration of incompatibility is the thing to issue.

I think this is such a clever compromise between law and politics.  It certainly meets my objection from the 1980s to the kind of judicial supremacy for which (I nearly said as a kid!) I used to argue when I first started teaching.

In  this post-Cold War capitalist climate it gives those who desire some kind of critical ethic (in this case a human rights ethic) a decent toehold in the law.

But What About Those Rotten Judges?

Of course the judges are not evacuated by this scheme: it is a legal one after all and the judges are the inevitable referees.

A malevolent or even merely antagonistic judicial branch could be doing a lot of damage.

But it hasn’t and (so far) it isn’t.

This is where the human rights sceptic of law needs to display the pragmatism which he or she argues for in others.

The fact of the matter is that for whatever reason (and I think its part generational, part a reaction to the public opprobrium in which the judges were held at the end of the Thatcher era), the senior judiciary have changed.  True it’s still mainly old white men  – but they have been liberal old white men. Led for years by the late Lord Bingham and the estimable Lord Woolf of Barnes (with other key figures being the late Lord Taylor, Lord Nicholls and the former radical barrister and human rights sceptic Lord Justice Stephen Sedley) the atmosphere in the courts has changed.  There has even been one women at the very top, Baroness Hale of Richmond, whose influence has been very significant.  (It remains a real pity and cause for concern that there are not more women.)

Judgments have largely stayed within the spirit of the Human Rights Act, being expansive when the judges have been able to ‘go with the grain’ of the legislation they are analysing, but holding back where it is essential that they do not override Parliament, as in the famous Belmarsh ruling.  For its part Parliament has taken the court cases seriously and though the executive has grumbled, its annoyance has never spilled over into mutiny.

In a common track soon to come I reflect on the last ten years of the Act and it will be there that you will be able to read further details of my take on this valuable piece of legislation.

My ‘big picture’ point is that without the Act we would have had a meaner, less caring society over the past ten years and one in which, moreover, a substantial number of injustices would have gone uncorrected.  And we have managed to do this without turning our constitution into an American-style one with unelected judges presiding over what we can and cannot do as a people.

And The Coalition Government?

It seems pretty clear that, left to their own devices, the Tory leadership would have smashed the Human Rights Act.  They have never liked it without really ever explaining why – it is quite a conservative measure (certainly from a socialist point of view), a fact that thoughtful Tories like Peter Oborne and Jesse Norman have picked up on.

But they are not on their own: the Lib Dems have always been keen on the Act and are likely to stand up for it in any squabble that might arise in government – it has already survived a scare about stopping the removal of suspected terrorists without its opponents having been able to muster much hostile rhetoric, and the Justice Secretary Ken Clarke is known to be broadly supportive.

But the joint programme for government does not unequivocally commit to the Human Rights Act so it is potentially vulnerable to the tyranny of events.  Who knows what might happen some Summer week when the media decides that a killer is at large only on account of the Act or they suddenly declare that an immigrant has been able to thieve and pillage on account of it?

Believers in the Act also need to be very careful about the judges.  Is their current liberalism a mere passing phase?  Will normal reactionary services be resumed at some point in the future?

All supporters of the Human Rights Act need to be perpetually vigilant against being overtaken by changes in the judicial atmosphere or by events launched at them by hostile forces.

And all progressives and social democrats should be supportive of the Human Rights Act at least until such time as they find a better and more persuasive way of articulating the ethic that drives both them and those committed more absolutely to the language of rights: respect for the equality and dignity of all.

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22 Responses to T7 – The Right Rights Model

  1. Paul Bernal says:

    In the current climate, and with the current judges, it all seems to make sense, and provide some crucial safeguards and valuable tempering to what might otherwise be very damaging political tendencies. The points made at the end, however, are also crucial – has the Human Rights Act only really worked because we’ve had a relatively liberal set of judges to make it work? And, perhaps even more to the point, what can or could be done in the event of a judicial lurch in a conservative or reactionary direction?

    • Wenwen Lu says:

      A relatively liberal set of judges is one of the most essential factors that make the HRA works, if the judiciary is not the sole reason. I think we have been so lucky to have Lord Bingham and others in the House of Lords, as another set of judges might deliver a different decision in Belmarsh. The conflict between the basic principles that define human rights, the rule of law and the laws that elected legislatures may decide to enact is a recurring theme, as is the House of Lords’ insistence (or perhaps Lord Bingham’s particularly strong insistence) that the former should take precedence. Not every judge or set of judges would do the same.

  2. Alex says:

    This may well just be my own biases and the fact that I had a fair amount of time spent defending this particular policy, but I think it’s unfair to claim that ANY party in the UK would disown the concept of protecting our fundamental rights. Granted, there are different approaches to ensuring their continued existence, but the basic goal remains much the same.

    “It should guide the judiciary and the Government in applying human rights law when the lack of responsibility of some individuals threatens the rights of others.”

    I think this section of Cameron’s 2006 speech on a Tory conception of a British Bill of Rights is one which is key to my understanding of what a Human Rights Act should really achieve to do; ensure that our basic rights to dignity and equality are protected, but also that we are aware that we have a social responsibility to respect the rights of others. This rights and responsibility balance is just as key to ensuring that human rights flourish as preventing an illiberal and reactionary judiciary from coming to the fore. Hopefully in laying out in clear terms to the public that rights should be something which the collective consciousness enforces, rather than the judiciary, and is something we should all feel some responsibility for, we would avoid the judges playing too contributory a role in defining our rights.

    I’m not a believer in the HRA itself, merely what it is awkwardly attempting to do. I do believe that if we truly want an equal society, we need to ensure that the definition of what equality is and isn’t doesn’t come from the courts or even our elected representatives, but that they merely ensure that the will of the people is set out and enforced.

    • Paul Bernal says:

      Just as a matter of interest, why is it that you’re not a believer in the HRA?

      • Alex says:

        I don’t like the fact that there’s scant evidence of there being responsibilities as well as rights; to me the two go hand in hand in a civilised and equal society.

        I also really dislike the fact that the language of rights (which consistently seems to be one of rights of the individual without any responsibilities to society or other individuals) created by the bill has devalued conversation regarding furthering a rational concept of human rights; it’s just given the slathering Daily Mail readers a chance to bang on about human rights being ‘political correctness gone mad’. The HRA has done more to damage what the popular understanding of human rights should be (in my opinion at least) than it has good.

        • Paul Bernal says:

          Both points have something behind them, but can you really blame the HRA for either of them?

          I mean, of course responsibilities are crucial in a civilised society, but how would you envisage incorporating them into law? The HRA is a piece of law, not a set of principles about how people should live. Unless you’re suggesting that the idea of responsibility should be turned into some kind of legal obligation…

          ….and slatherers from the Daily Mail will slather about anything that involves applying human rights to the kind of people that Daily Mail editorial writers despise, from homosexuals, asylum-seekers or terrorism suspects onwards. Anything that grants people rights would produce that kind of reaction. Anything that, for example, would allow the people imprisoned in Guantanemo Bay to seek compensation, whether it be the HRA or not, would be pretty much guaranteed to produce headline after headline. I’ve followed some of the reactions over the last decade, and the worst I felt you could blame the HRA for is providing something that the Daily Mail et al could point to – they were often blaming the HRA when it had nothing whatever to do with the HRA, but the subject was vaguely about human rights, and we had some kind of human rights obligations that we needed to fulfil…..

          • Alex says:

            Whilst I don’t think there’s anything wrong with adding some legal obligations of responsibility in a new HRA, I also recognise that many would decry it as being a ridiculous and constrictive move which would give a conservative judiciary more of a toe hold for destroying our human rights with the very thing meant to inform them.

            In all honesty I’m not sure how I’d attempt to enshrine the idea of responsibility being as inviolable as our rights, that’s something I’d far rather leave to those better informed and more legally imaginative than myself.

            On a political level though, I think introducing a new Bill of Rights which emphasises responsibilities as well as rights would leave those wishing to attack the human rights movement with a little less scope to do so. That’s a purely theoretical point though, and I’m not sure how well it would go down in anything other than Conservative and Libertarian circles.

            You’ve given me a couple of points to wrestle with when it comes to my own ideal Bill of Rights though, and I’m starting to realise how there is maybe no chance of getting to that magic Goldilocks stage. Maybe as with every other piece of legislation we should come to accept that it’s always going to be a compromise – regardless of my wishes for a belt and braces approach to protecting our rights.

          • Paul Bernal says:

            The thing for me is that a ‘bill of rights’ that is more of a ‘declaration’ or a setting of principles is something that is for politicians, for NGOs and so on. The HRA is very much a law, and fits perfectly with the role that Conor sets out for lawyers as supporting players. A bill of rights would be something quite different, at least for me.

  3. I very much like the mechanisms of the UK Human Rights Act – very clearly set out here by Conor. In Australia where I usually live, we do not have such an equivalent – we are at this point the one “Westminster” country that has not gone down the rights act road. And I think it is a great problem. We have recently had a national exercise, where the idea of a human rights bill was debated – but then the idea was dropped by then government (much could be said about this exercise but here is obviously not the place!) To my mind this is a great tragedy. The Australian parliamentary system has not been good at protecting the most vulnerable in society, the most at risk, and a system such as that used by the UK Human Rights Act would help by forcing those who govern to be more conscious of the consequences of the decisions they make – and hopefully therefore more responsible for them and responsive to them.

    As Conor argues, I think the UK Act is a good example of how to operationalise the various competing principles which need to be satisfied – although I agree with him about the ongoing need for vigilance and the dangers of the road ahead.

    Whatever mechanism you produce to operationalise rights protection there are going to be weaknesses and dangers. We cannot expect to create a system which will look after us perfectly – where we can sit back well satisfied with the job and get on with other things. To think like this is to misunderstand the nature of the task – politics and public life in general is not about setting up a system which we can then sit back from and hope that it ticks over nicely for the duration. Politics and public life is about being engaged, actively involved. From this point of view the weaknesses of the human rights act could be seen as a kind of virtue – providing it does give us the motivation to continue to be vigilant and involved, avoiding complacency and political disengagement, then it is indeed serving a very important additional service!

    • Wenwen Lu says:

      The battle for an Australian charter or rights (at commonwealth level) seems to be a debate that will not die. Most Australian academics prefer a “moderate” form of HRA that exists in the UK, as it strikes the most appropriate balance between protecting fundamental human rights, and preserving key constitutional principles (e.g., the separation of powers doctrine), and conventions, as Professor Gearty has summarised. The overwhelming evidence of the UK Human Rights Act working effectively strengthens the argument. In particular, this success has been achieved without realising fears about a growth in judicial activism and explosions in litigations in Britain. So yes, I also quite like the HRA!

  4. I would agree with Paul that we have been mostly lucky in the first generation of judges that have been applying the HRA, in that they have been more liberal than their predecessors and willingly adapted to the use of the HRA. However, I think the HRA is capable of surviving a more conservative judiciary; it has performed admirably through a period of considerable threats to its content from anti-terror legislation.

    Conor is right in calling the HRA a clever compromise. As well as drawing a balance between law and politics, it has provided a clear method of both respecting parliamentary sovereignty and protecting human rights from over-zealous legislators. If human rights are part of politics, then they will always involve compromises. This compromise does not necessarily mean that the HRA is frail, but that it is working.

    • Paul Bernal says:

      I hope you’re right – and think you might well be, because it IS a clever compromise, and most clever people should realise it, even if they have problems with it in practice. The leaders of the current coalition, for example, seem to understand that there’s no point really thinking about repealing or replacing it, no matter what might have been said before the election. In practice, outside the pages of the Daily Mail, it does it’s job fairly well.

    • Christina says:

      Holly, Absolutely. It is in the application, not necessarily the system where the fault lies. Dare I say more women in the judiciary, and at the top, might have an effect? Almost any political system from a benevolent dictator through to democrary, is ideal if the best model is working. After all Lord Lester took off 2 years to work on equal pay for women, and since 1968!!!!, this law/right has not been applied.

  5. Sophia says:

    I just want to challenge the reasons put forward by Alex for disliking the Human Rights Act.

    Alex argues: 1 – That the human rights act is too ego centric. It should be more reciprocal and give equal weight to responsibilities as well as rights. 2 – That it has generated lots of ill-informed Daily Mail style rights bashing.

    I’m sure these ideas are shared by lots of people. I know I’ve heard them many times over Sunday dinner with my family. My Dad is especially fond of the first point.

    In response? Well, as to the responsibilities argument. What kind of responsibilities do you mean? And how are they connected to the rights guarantee? Rights are not conditional on being a good and proactive citizen. This would be absurd. The only relevant responsibility when it comes to rights is to recognise that the rights that you hold are also held by others. The act certainly has cultivated a culture of rights protection and has been very good at balancing different interests and articulating these balances. If responsibilities are to be legally enforced does that mean we want a horizontally effective Human Rights Act?

    To the second point – I think that Paul is right when he says that human rights protection in whatever form it comes will always come under attack from people with ‘DailyMail-esque’ inclinations. But publicity can be a great thing as well. The more people thinking about rights the better. Human rights supporters have an obligation to make sure that this thinking is well informed. Liberty has done some great stuff in this area with campaigns to dispell dangerous myths about the act and explain, in simple terms, how the act works.

    • Paul Bernal says:

      To add to that, there’s a way in which you can say that the fact that the Daily Mail hates the HRA should reassure us that it must be doing something good!

      To very loosely paraphrase Conor from an earlier track, if it’s doing its job properly, human rights will often get up the noses of reactionaries.

    • Christina says:

      Sophia, common sense and to the point. It was at the Liberty Conference when Lord Bingham spoke to human rights to a standing ovation. Liberty have a free, credit card size folder, which you can carry in your handbag or wallet, whenever the arguments come up. COMMON VALUES. ” Life, liberty, freedom from torture, slavery, which of these rights would you wish to give up?” he asked.

    • Wenwen Lu says:

      I agree with Sophia that a list of what is considered good behaviour is absurd. Human rights are not conditional in the sense of being rewards for good behaviour, and so they cannot be suspended or abrogated by the commission of a crime or other anti-social behaviour. It’s common sense: rights should not be contingent on performing responsibilities.

      A HRA needs to be necessarily selective, as it cannot cover every kind of situation, and seeks to intervene in personal relationships. It is vague and general, intended to cover all situations at all times. Imposing responsibilities is absolutely not an appropriate subject for any HRA. In addition, correlative responsibilities, such as the duty not to abuse one’s right to freedom of speech by defaming others or inciting people to violence on discriminatory grounds, have already been given legal content by criminal and civil law. So as to the question of whether “we want a horizontally effective Human Rights Act”, I think the answer is quite clear. Any HRA should not have direct horizontal effect, as it would be a “recipe for uncertainty and confusion, cutting across the well-established categories of private law liability.” (JCHR)

      Having said that, codes of responsibilities can play an important moral and civic role in, for example, educating children about their position in a liberal democracy. In 2008, South Africa produced a document listed twelve responsibilities explain how rights such as the right to education require good behaviour in class, or how the right to freedom of expression places responsibilities on children to refrain from using speech to victimise or discriminate against others. But, it has an educative role only; it has no legal force. While an articulation of individual responsibilities may play an important role in understanding that human rights are generally not absolute, I think it’s appropriate to include a clause about responsibilities in the preamble, as that of the UDHR.

  6. Christina says:

    Always emancipatory. I like that! Come on Zoe and Charlotte, round up the women.
    I am delighted Conor, that I am able to join the debate. I had thought that as non English, non Oxbridge and a woman, this dialogue was not for me. So grateful thanks, for allowing me in, and speaking of violence, could we include the women’s struggle for the vote? I will always bring rights home, and to women. I wouldn’t dream of asking the men to desist! Just widen their thinking to include another perspective. I don’t just focus on women, liberation is not just for women, but for all, refugees, slaves, children, all humans. I’ve heard both Lord Bingham and Lord Lester on the Human Rights’ Act. It seems to me that many of the attacks and the “responsibilities” claims, fail to know the Act, which, surprisingly, originated not in Europe, but by British judges.

  7. Christina says:

    Just wanted to clarify, in my own mind, The Human Rights Act 1998 gives further legal effect in the UK to the fundamental rights and freedoms contained in the European Convention on Human Rights. Which was established in 1950, as a result of the horrors of the holocaust. It is also my understanding from Tom Bingham, that it was predominantly British laywers. So not imposed on us from Europe. We need not to heed the inflamatory headlines in the press. Responsibilities is a red herring.

  8. Louise Thomson says:

    The question posed here is what is the best way to defend and promote human rights via the law? I agree with Phillipson on his description of the ‘myth of effective political protection for civil liberties’ and that in the way that our politics is currently practiced, political accountability in any strong sense, is a myth. I don’t think that basic human rights for unpopular minorities (or others) are a fair price to pay for majoritarian principle. Too many writers in this field put political theory before reality and they value (as Phillipson puts it) ‘institutional morality over substantive outcomes’. Mikhail Bulgakov writing in 1920s Russia was highly critical of academic theorists failing to recognise the perils of actual human nature and reality in their quest for overarching political ideals. He felt that real people paid the price for this indulgent theorising and his fears turned out to be accurate. His novel ‘The Heart of a Dog’ is brilliant in predicting this.

    Phillipson asks if majoritarianism supports civil liberties and refers to 2005 opinion polls which showed that 61% of the population preferred national security and the prevention of terrorism to the protection of civil liberties (YouGov poll), while 75 per cent agreed with pre-emptive action based on intelligence against terrorist suspects who had not yet committed an offence. A YouGov poll for Sky News found that 72% of those questioned believed that the maximum time the police can detain suspects for without trial should be extended to 90 days. Phillipson says this invited the risk of human rights being traded for short term political advantage and arguably, they were.

    Although I want to dislike the Establishment judiciary in the way I was taught as an undergraduate (with judges quotes on village cricket and worse), in reading cases under the Human Rights Act there is a lot to admire and I would currently feel safer with my human rights in the hands of the judiciary than in the hands of the majority and politicians seeking short term popularity. I think this owes something to the constitutionalisation of the judiciary in England as a result of changes to the legal profession after the 80s and European accountability as has been identified by David Sugarman in discussing the Pinochet case. Things may change, there are no protections, but what is the alternative?

    The HRA is a very pragmatic regime and I think the judges have dealt well with the more constitutional role while still respecting political process. As long as the government respects the declaration of incompatibility (which is seems to), the process works well, although I wonder if there were further large scale incidents labelled as terrorist, or if some of the recent political moves involving welfare cuts were to end up somehow in the courts, whether this will continue. It would be easy for the Conservatives to take on the judges in a politically sensitive case with the backing of the mainstream press. It is also worth saying that even now individual rights restrictions are not always dealt with effectively because of the preference for political process. The Bellinger case must have been distressing for Bellinger but imagine an even more extreme infringement of rights being left alone for a period to allow parliament to debate and come up with something.

    If we are forced to rely on majoritarian democracy or even elected judges then it seems to me that the majority is the new ‘Tyrant’ in the fight for human rights. I think it is funny how often the Daily Mail comes up here. This indicates something about rights in the UK that is interesting and is related to class and culture. Affinity with, or interest in human rights is also a cultural choice, it is something you are interested in as a subject (or not). Although I’m not a Daily Mail reader, when Alex says Daily Mailers think that human rights can sound like ‘political correctness gone mad’, I actually agree with them. Not in the way the HRA is applied but in the way the subject is debated. I’ve never encountered as many ‘rules’ about what you should or should not say about a subject since studying human rights. It is an area raising such fundamental and important human issues that it should be more wide open in terms of accessibility, context and areas of knowledge that contribute to the debate.

    Human rights has become a middle class and up cultural concept in the UK, a bit like opera. Of course anyone can understand and have access to the debate if they want to, but where does it really sit? Solidarity in the workplace and workers rights were working class or mainstream concepts but civil and human rights now seem to have moved away from this culturally so that many people feel it has nothing to do with them. It seems to be a Broadsheet, middle class concern with a smug, cosmopolitan perspective. We can’t just laugh off these Daily Mail arguments. Try debating this with someone who believes them, you need a totally different set of responses and it’s not easy.

    If it was opera, it wouldn’t matter, but in looking at the YouGov polls, those in the UK who want to rely on politics and the majority to protect human rights might need to face reality. Human rights activists concerned with preserving universal rights in the UK need to be willing to fight in the field of popular culture and develop an ability to make their points more persuasively where it counts with the majority. ‘Getting up their noses’ might mean rights are having some affect but let’s not congratulate ourselves for alienating the majority. Editorial in the Guardian is just preaching to the converted. Next time someone in the pub, or a cab driver or an annoying relative tells you that ‘you can’t make an omelette without breaking a few eggs’ when it comes to national security, don’t just turn up your nose, give it a go! If we can’t advocate rights effectively when stepping out of the comfortable territory of academia or the liberal press, perhaps we need a new language and new tools, when the majority counts so much in allowing for the legal and political protection of rights, this is real activism and not just chat.

    • Paul Bernal says:

      Louise, I couldn’t agree more about taking the debate to what might loosely (and admittedly fairly inaccurately) as the Daily Mail readership – it’s something I’ve been doing for years on various Internet messageboards and forums, with not a huge amount of success. I’ve noticed, though, that in some ways at least the message is getting across to some degree, and that it can be possible for the debate to move on, even if in a lot of places it can get both depressing and demoralising – I wouldn’t advise anyone to look at the BBC news ‘Have your say’ message boards after something contentious happens, for example, unless they’ve got a thick skin and a lot of resolve.

  9. Duygu Akdag says:

    I would just like to comment and add to the analysis that sees the HRA as a clever compromise with the pragmatic benefit of making HR law operational, presumably as opposed to politically naieve and undemocratic. I also wish to see HR law achieve justice in the real world, and I understand that compromise with politics is inevitable, so I’m going to raise the ideas of proportionality and a representative judiciary. It would indeed be undemocratic to deny the essential separation of powers between the judiciary and ‘politics’ , insofar as parliament and the executive branches represent democratic politics. We have parliamentary representative democracy, and we regard it as having legitimacy, and so we have sovereignty, and so, in a sense, the state acts ‘in our name’. Fine. It is the boundaries of this separation of powers which provoke debate, not the necessity for it. Many democratic people aspire to the idea of justice as independent from politics, and therein lies not only the basic reason for the separation of powers, but also legitimacy for the overall system. Who can constrain the misuse of political power or prevent its arbitrary nature? Just as human beings may romantically long for an abstract higher intelligence to fix the problems of the world, so our societies have long attempted to incorporate and systematise our own higher intelligence in the form of a wise and qualified judiciary. The judiciary is supposed to apply this wisdom in working with the laws the political system hands to it. Faith in the judiciary does not mean mistrust of the political system, nor vice versa. Let’s not separate too much – justice is politics. . The prohibition of minarets in Switzerland may seem an arcane example to give here, but it was democratic politics which delivered such injustice. None here needs to be reminded how politics can result in horror. So does it not make sense, in awarness that parliament can get things badly wrong, that its products, decisions, laws and policies should be subject to fairness and justice (substantial control)?  I am not calling for oligarchy or rule by judges, far from it. Wisdom, however, should not be discarded. Individual judges may lack it on occasion, and it would appear that the judiciary also comes under internal and external pressures which reduce its theoretical impartiality. Why should a court composed of 7 senior male judges decide on abortion? Why is the supposedly representative parliament dominated by males? Both government branches attract justifiable criticism, and just as they must be separated, so they are inseparable in another sense. Instead of making something a pure political or judical issue and a fight between the legal system and the political system, the judiciary body could become both more independent and more representative so that it can warrant competence to apply the proportionality test. This was missing in the HRA for me, although I like it generally. Article 8 to 11 could include the proportionality test because it is not replaced by the notion of necessity in a democratic society, I believe. This could lessen the compromise between politics and legality, but not necessarily for the worse.

    The HRA must consider the ruling of the ECtHR but does not have the duty to follow it. I am still asking myself whether I would like to see a stronger role of the ECtHR in the HRA.

    Within a compromise which requires further compromises, I believe we need monitoring bodies controling whether the priorites set by politicians are proportionate, the rulings made by judges reosonable, and acts exercised by the executive just and democratically representative, in order to give a greater meaning to HR, putting them alongside democracy as the bedrock of state legitmacy. I think HR can be seen as an aspirational higher intelligence that is widely shared and is therefore democratic in nature, in the sense that it provides part of the framework for a more just and a fairer overall system. We should not fool ourselves that the system we have now will remain in its present form forever. It can get better, or, sadly, worse. HR laws that are able to pragmatically function and deliver real protection are better than set-pieces that draw applause but achieve nothing, this is so true. But we must be careful not to hand justice over to those who may not be particularly interested in it. 

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