Chapter 1

Why the Human Rights Act Matters

The human rights insight is that none of us has a guaranteed space among the fortunate, that the border between affluence and misfortune is more porous than we assume. Human rights are for us all but likely to be called upon only when we need them. And rich and fortunate though we might seem, these are not guaranteed conditions: we will grow old, we may be visited unexpectedly by the police, an onset of mental ill-health may leave us vulnerable; our lives may change suddenly for the worst.

When the editor of The Sun—so casual with the lives of so many in search of a headline; leader of the popular charge against human rights law—emerged from the courtroom in which her fall from power at the hands of a police investigation had just been confirmed to complain about the infringement of her human rights, it was difficult not to stifle a smile but important to try to do so: human rights are for us all for sure, but for each of us individually on that rainy day that we hope never comes. Even the greatest cheerleader against human rights, The Daily Mail, has not been below deploying the law it despises to advantage when it seeks to finds itself needing to strike against authority.

The Human Rights Act does more than merely focus the minds of administrators and guide the judges to better, more compassionate decision-making, important though each of these impacts is. It stands for a series of important claims about Britain’s true place in the world. Indeed it might well be these assertions that have proved its undoing; as the naturalized British poet and Anglophile T S Eliot put it, ‘Humankind cannot bear very much reality.’ If we leave aside for now this piece of legislation’s politically astute respect for parliamentary sovereignty, it is clear that the Human Rights Act is a document that is profoundly subversive of the partisan national interest. To put it mildly some people—often quite powerful people—do not like this. So why should this be the case?

First there is its determination to obliterate the difference between Brits and the rest. Gone is the imperialist claim of Lord Palmerston at the time of the Don Pacifico affair in the mid-nineteenth century that a British subject ‘in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England will protect him, against injustice and wrong’. Human rights replaces ‘Gunboat diplomacy’ with humanitarian intervention where the targets of the action ostensibly at any rate (more on hypocrisy and double standards later) are precisely not British at all. It is under human rights law that British soldiers are held to account if things go wrong (a bit of unnecessary killing here; an outbreak of recreational torture there) whereas in the past it would have been the ‘natives’ whatever were the facts on the ground. This is a huge ask of a state that was still in living memory top dog across the world, that held this position for generations, whose wealth is built upon making the international rules to suit itself, and for whom the weakness of others was for centuries something to be exploited rather than remedied.

Second comes the Human Rights Act’s role as passport to the wider world of ordinary European nationhood to which the collapse of Empire has now fated Britain to belong. Again this is tough on a country whose twentieth-century story, the one it so often tells itself, is one of heroic and singular defence of the Continent against evil. In the early days of the European Court of Human Rights a judgment against a repressive common law decision of the House of Lords on contempt of court provoked the wrath of another adopted Brit, F A Mann. He had been forced to flee Nazi Germany and had settled in Britain, becoming a famous and highly influential solicitor: what right had these judges (naming the countries from which the majority votes came) to challenge ‘one of the greatest contributions the common law has made to the civilized behaviour of a large part of the world’? Mann may have a point here, but it is not one he would recognize: the case reflects a precipitous fall from grandeur, Lord Grantham slumming it in the kitchen fighting over food with servants of whose existence just a short while before he had been uncertain.

Even more than the European Union, the European Convention on Human Rights—with its forty-seven equal members and its court with a single judge drawn from each place no matter how large, powerful, or great its history—is for many evidence of decline before it even opens its judicious mouth. It is much easier to savage the messenger than understand the news it is bringing, both particular (this or that verdict) and general (Britain’s modest place in the world as one European state among many, equality having replaced exceptionalism).

Third there is the internationalism that the Human Rights Act takes as a given. One of the large-scale achievements of the liberal global order has been the amassing of a set of standards about good behaviour which are manifest in legal obligations to behave properly. International law used not to be about this, the obligation on states to respect the rights of those within their power. In its Victorian pomp it busied itself with the regulation of the conduct of nations, its vigilant oversight always stopping at the front door. Relics of this old approach remain, pre-eminently in the United Nations’ caveat about the domestic autonomy of its member states, but the veil is often pierced these days by energetic human rights inspectors, popping up as UN monitoring committees, special rapporteurs on some moral aspect of life, or as the Secretary General’s representative on a knotty global question, all demanding the subject state change its tack. Infuriating to countries keen to hide authoritarian tendencies or embarrassed by illegal occupation, these rights interventions have often proved unpopular in Britain too, notoriously with regard to Northern Ireland but also whenever they appear to involve the assertion of oversight over what the visitor calls human rights but which the government sees as its policy choices.

The Special Rapporteur on Adequate Housing Raquel Rolnik found herself at the centre of much governmental and journalist anger along these lines in 2014, ‘the Brazilian nut’ (as the papers called her) who had the temerity to claim that this country’s rules on housing benefit might breach the state’s obligations to its poorest people; one government Minister even went so far as to describe her report as a ‘misleading Marxist diatribe’. The Human Rights Act does not directly engage with this international world, one where a mere South American woman can seek to hold the UK to account in this substantive way, but it talks the same language, normalizes the binding of a once-great Leviathan with restraints whose tightness is determined by others, one minute a European judge, the next a tenacious UN-appointed academic. Where will it end? And so does one of the great achievements of the liberal international order, the growth of international human rights, become for such critics a thing to be deplored rather than, as surely it should be, celebrated.

So we have these three related dispensations: international human rights law; the European Convention on Human Rights; and the Convention’s domestic incarnation in the shape of the Human Rights Act. Each is drawn from the same cloth, dividing opinion in the sharp way they do because all three start a conversation which cannot but lead to discussion of Britain’s smallness on the world stage and its relative inability to act in the sovereign manner many continue to claim as its birthright. There is a marked difference here between the New Labour model of Britain that dominated politics from 1997 through to 2010 (the Human Rights Act being one of its first legislative achievements) and the more determined but inward-looking brand of politics that has followed the Blair project’s collapse.

Tony Blair and Gordon Brown led administrations that embraced internationalism and largely accepted international constraints (and their domestic incarnation in law) as part of what modern Britain had become, punching above its weight perhaps but doing so from within the featherweight division. (Indeed it was probably an over-awareness of this weakness that caused its downfall—joining the world heavyweight champion to win what looked like some easy victories in the Middle East only to end up abject partners in defeat.) David Cameron and his ministerial team have from the start, but especially since shaking free of the Liberal Democrats in 2010, been Little Englanders writ large on a UK stage, forsaking a rational centre-right grouping in Europe for a loose grouping of Europhobes much further to the right, treating Scotland as a mere (possibly even a dispensable) tool in a trivial political game against Labour, and largely ignoring Wales and Northern Ireland unless violence in the latter wakes them up. They have ratcheted up their anti-foreigner rhetoric to see off the UKIP threat from the Right (one very similar to their own continental allies) while preaching to the world about good behaviour without stopping to think seriously about whether, these days, anyone was listening.

Parliament may be sovereign in law but it can as easily legislate for a return of British global power as it can mandate the sun to travel around the earth. Both interventions are constitutionally possible but in different ways (almost equally) laughable. This country is surrounded by large facts that it simply cannot control: the European project across the Channel, the refugee crisis further south, the neo-liberal global movement driven by financial institutions and their corporate advocates that appears to have escaped national control everywhere; the human rights movement with its regional manifestation in both the European Convention and (more recently) the EU Charter of Rights that seek in the name of human dignity to counter some of the worst excesses of these large-scale changes.

None of these can really be challenged by even the most confident Little Englander schooled in the triumphs of Agincourt and Churchill (of whom one of their most polemical members has written a biography). It turns out that despite all earlier appearances, antagonists of human rights do not plan, after all, to withdraw from the European Convention on Human Rights. Supporters of a NO vote in the EU referendum early on suggested that it was merely part of a bargaining session with Europe and not a proper IN/OUT vote at all—say NO to get a better deal is what Eurosceptics say when their bar-room rhetoric collides with reality.

The Raquel Rolniks of this world will keep on coming or trying to come and denying entry will make the country look North Korea silly, an isolated farmer shouting at passers-by to keep out wielding a giant shotgun while his family ekes out a dull and dreary life behind him. Britain can do nothing at all about the facts around it. But guess what: it can bash the little kid in the playground who stands for what these large truths reflect but who is wholly at the mercy of the local bullies. Parliament made the Human Rights Act all by itself. In none of its forms did Europe demand it. Repeal is noisy but safe, even if it means nothing at all, or is disguised by a supposed move towards better rights protection. Only on a fantasy island could such a proposal be treated with a straight face.

In a powerful recent report, the European Union Committee of the House of Lords made a plea to government to ‘think again’ before persevering with the plan to remove the Act and replace it with a British bill of rights about which its inquiry had ‘raise[d] serious questions’ as to ‘feasibility and value’. This book is about the true place of the Human Rights Acts in Britain, but to get to this we must first confront these fantasies; exposing them tells us more about Britain today than it does about human rights themselves. At the time of writing the execution has been stayed, the plan foiled perhaps by exposure to fact. If so this book may be less an obituary than preparation for a second coming. Let us hope so.

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Britain, Europe and Human Rights