I am, on balance, in favour of the Human Rights Act, and think that the European Convention on Human Rights has made the world a better place. Whilst the European Court of Human Rights is capable of improvement, it is institutionally necessary if the open textured rights in the Convention are to be meaningful. Without such a central court, signatory states could each adopt their own idiosyncratic interpretations, and the entire purpose of the Convention defeated.
But, the case for the Convention is not as easy and obvious as its supporters sometimes believe. Two examples of such over confidence are
in today’s Independent and Guardian.
Bad Argument One: Human Rights are Universal
The label ‘Human’ rights is deeply misleading. It lays claim to the idea that these rights are common to all human beings in all times and places. An examination of the rights set out in the European Convention, and those in the UN Declaration, makes it clear that they are not of this kind.
For our purposes it should be accepted that some rights are universal in the strong sense of being moral rights that we all possess in all times and places that others should respect. These impose correlative duties on others to behave towards us in certain ways. Not only do I have a right in this sense against all others not to be tortured, I also have rights that others do not touch me without consent, tell me lies I believe, defame me, or burn down my home. If the legal system of any particular place does not recognise such natural rights, so much the worse for it.
The rights in the Convention are observably not like this. They are not rights we have against all others but rights against the State. These rights “set limits on the sovereignty of the state”.
(For a careful study of the nature of human rights see Joseph Raz. “Human Rights Without Foundations”
That the Convention’s rights presuppose the existence of a State against which they are exigible is enough to demonstrate that they are not of the universal natural law kind. People on stateless desert islands do not possess them. An easy illustration of the difference between what we have come to call ‘human rights’ and the older idea of natural rights is the right to education (Art 2 First Protocol, European Convention, Art 26 Universal Declaration). In what sense could cavemen have possessed such a right? Even rights such as that in Article 3 of the European Convention prohibiting torture confer upon us rights against the State that are far more extensive than the rights we have against all others in a state of nature. The State is not only obliged not to torture me (as all people are) but also to take positive steps to protect me from torture (by for example setting up a police force) which all people are not obliged to do. Conversely. some of the rights we do have against all others at all times (eg the right not to be deceived) do not appear in any Human Rights Convention as they are nothing specifically to do with the relationship between citizen and State.
To explain and justify the system of human rights that we have requires a careful and sophisticated consideration of political theory.
Bad Argument Two: Bingham’s Self Evident List
In his magnificent defence of the Human Rights Act, the late Lord Bingham stated that the strongest argument in its favour was as follows:
The rights protected by the Convention and the Act deserve to be protected because they are, as I would suggest, the basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being. Let me briefly remind you of the protected rights, some of which I have already mentioned. The right to life. The right not to be tortured or subjected to inhuman or degrading treatment or punishment. The right not to be enslaved. The right to liberty and security of the person. The right to a fair trial. The right not to be retrospectively penalised. The right to respect for private and family life. Freedom of thought, conscience and religion. Freedom of expression. Freedom of assembly and association. The right to marry. The right not to be discriminated against in the enjoyment of those rights. The right not to have our property taken away except in the public interest and with compensation. The right of fair access to the country’s educational system. The right to free elections.
Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British?
Framed in this way, one might think that the list of these goods is so self evident, that to be opposed to any of them is to defy reason, Who is going to argue against education? Who thinks retrospective punishment is a good thing? What kind of monster do you have to be to disagree with any of these things?
This argument has a strong rhetorical pull, but it is quite wrong. To oppose incorporation of these human rights into law is neither to be against freedom of expression, nor to oppose marriage. Rather it is to think that in a liberal democracy there should not be constraints on the State’s power to pursue the common good in general, or these particular goods in particular, as it thinks fit. The class of people most commonly found to be of the view that elected politicians should be free to pursue the common good in the way they think best , unconstrained by how other unelected people think they should behave, are elected politicians. Whether people of the same sex should be allowed to marry, or what the term limit for abortion should be, should be matters for democratic resolution, not for decision by judges. Those who passionately oppose abortion are more likely to accept a legal position contrary to their views if the decision is taken by a democratic legislature rather than by an appellate court relying upon an open textured value set out in a constitutional document. The Abortion Act (UK) 1967 is just a better way of deciding such questions than is Roe v Wade (US) 1973.
For some therefore, the answer to Bingham’s rhetorical question “Which of these rights would we wish to discard?” is “All of them.” The best known exponent of this form of argument is Professor Jeremy Waldron
If society is organised in such a way that we have a properly elected democratic legislature and government, why should its conception of how best to pursue the education of its citizens be in any way constrained by law? This is not to oppose these goods, but rather to oppose the resolution of the difficult question of how they are to be pursued by anyone lacking democratic legitimacy. Clearly there are certain rights that no government, democratic or otherwise, should ever violate (eg the state must not torture) but these universal rights are just not the same as those contained in the European Convention..
Bad Argument Three: The Convention is Peculiarly British
It is true that leading British politicians took part in the drafting of the European Convention on Human Rights. It is however nonsense to claim that the Convention rights are “based largely on those developed by the British common law, reaching back to the 1215 Magna Carta and the 1689 Bill of Rights”.
The United Kingdom’s constitutional approach has been the Diceyan one of Parliamentary sovereignty. Unlike many continental European systems, the state has not been constrained by rights enshrined in a constitution. There was no constraint on the legislature’s ability to determine who (if anyone) could marry. If we abolished the Human Rights Act and withdrew from the Convention there would be nothing to constrain Parliament’s ability to circumscribe freedom of assembly. Certainly there is nothing whatsoever in either Magna Carta or the Bill of Rights remotely resembling the constraints on the state found in the European Convention (as a cursory reading would tell anyone).
You do find constitutional restraints, closely resembling the list in the Convention, in the constitutions of continental European countries. So, someone hostile to the Convention might point to the Constitution of the Soviet Union of 1936
or the Weimar constitution of 1919 (technically in force throughout the Nazi period)
where you will find a list of rights that were, in principle, inviolable by the state that closely resemble the list in the European Convention. A reading of the text of the Convention, and a comparison with the constitutions of other European countries, tells us more about the Convention’s intellectual foundations than do fairy stories about how it was all Winston Churchill’s idea.
Bad Argument Four: The Human Rights Act cannot be repealed because of devolution
The Human Rights Act is incorporated into the devolution arrangements for Scotland and Wales. The Good Friday agreement guarantees that Britain will incorporate the European Convention into Northern Ireland’s law. Unless the people of Scotland, Wales and Northern Ireland show through the democratic process that they want their constitutional arrangements to be changed, it is clearly unacceptable for the United Kingdom Parliament to alter them (regardless of whether in constitutional law it has the power to do so).
This does not however mean that the Human Rights Act cannot be repealed or replaced in England. This would indeed lead to different laws being in force in different parts of the United Kingdom, but so what? It is the entire point of devolution that it allows for different laws to be in force in the different constituent parts of the United Kingdom.
Good Argument One: The Rules of the Club
A good argument is given today by the rightwing Conservative MP David Davis
Although the arguments for some kind of system of rights restricting state power within the wholly domestic context of a properly functioning democracy (as in the United States) are problematic, the arguments for them in the form of an international agreement between states is much easier.
If we think that there are certain minimum goods all states must secure for their citizens (eg a justice system, secure property rights, freedom of assembly) then it makes sense to set up an international system to try to ensure that all states meet these minimum standards. A set of internationally agreed rules applies pressure on all members to comply. Whether certain matters are within (eg education) or without (eg housing, healthcare) is a matter for agreement, and is not self evident. This was the point of both the European Convention and the UN Declaration. Such a system requires an independent international arbitrator. That also requires that individual signatories have to put up with the results of those independent decisions, even if they think they are wrong (or indeed even if they are wrong). If we do not want the Russian courts to have the final say on whether it is ok to torture, the quid pro quo is that the UK courts do not either.
This point, and its limits, is lucidly discussed here
Further, as it is implausible that every claim for violation of such an internationally agreed system of rights could be heard before a single international court, it is necessary for domestic legal systems to give some mechanism of redress before their courts. This is what Article 13 of the European Convention on Human Rights requires, and what the Human Rights Act 1998 achieves in the United Kingdom.
One significant problem with such a system is what happens if the international court gets it wrong. There is no simple mechanism of democratic override, as would happen in the UK if our Supreme Court reaches a decision unacceptable to the legislature. The only mechanism of correction is either by reversal by the court itself (as has occasionally happened) or by international agreement by members of the club to change the rules (which is very difficult indeed to achieve). This means that the court must show restraint.
Infamously, the clearest modern example of error is the European Court of Human Rights’ decision in Hirst that the UK’s blanket ban on prisoner voting was incompatible with article 3 of the First Protocol guaranteeing free and fair elections. Given that the court accepted that it is permissible to deny the vote to some who commit criminal offences, it is (to say the least) obscure why a signatory state could not define those who are denied the right to vote as being coextensive with those whose crimes are sufficiently serious to warrant a custodial sentence. However, accepting decisions such as these is the price we must pay for the system.
There are good arguments for an international system of human rights. There are also good arguments why such rights need to be enforceable before the courts of signatory states if they are to be meaningful. These arguments are however more complex and contingent than some advocates for Human Rights are prepared to allow. By making bad arguments instead, they endanger the entire enterprise.