Contrary to what we were all expecting, we now know that the Conservatives are putting the brakes on their plans for human rights reform. The complexity and controversy surrounding the whole area seems to have prompted a decision to allow time for consultation ahead of the stated intention: to repeal the Human Rights Act 1998, which requires UK courts and law-makers to take account of the European Convention on Human Rights and judgments by the European Court of Human Rights in Strasbourg, and replace it with a UK “bill of rights”.
It may now be more than a year before legislation emerges. This provides a suitable window to make a different philosophical argument to what either side is saying at present. We should not be talking about a choice between the European convention and a British bill of rights. Instead we should be rejecting both.
The trouble with Strasbourg
First off, there is absolutely a case for repealing the Human Rights Act. As a guiding principle, elected politicians should decide the content of the laws that apply within their political jurisdiction – an idea with a very long pedigree. They should decide what particular legal rights and duties the citizens within their polities have.
We are well past the days of absolute parliamentary sovereignty, admittedly. It should be more of a presumption in favour, in my view. It seems reasonable to argue for making exceptions – such as the economic advantages that we derive from being in the European Union. But I don’t see the same good reasons to extend this to the European Convention on Human Rights.
We have to draw a distinction between things that we value and the legal right to those things. For instance, human beings all need food, clothing and shelter. They do not need a legal right to these things. You can apply the same logic to the European convention. If we look at Article 6, for instance, we are said to have a human right to a fair trial. It is of fundamental moral importance that if we are tried for a criminal offence, we are given a fair trial. It is not of fundamental importance that we have a specified explicit legal right to a fair trial.
Or take Article 3, which conveys a human right to freedom from torture. In the same way as above, we have a moral right not to be tortured whether or not we have such a legal right. It is important that we are not tortured. It is not of the same importance that we have a legal right not to be tortured.
This might appear to open up the accusation that this is ignoring reality, that we are more likely to enjoy these moral rights if they are underpinned by legal rights. But are we? Are people more likely to be given fair trials, or less likely to be tortured if their governments agree to be bound by the rulings of the European Court of Human Rights? It is far from obvious that either has happened since the Human Rights Act was passed in 1998. When someone like the actor Benedict Cumberbatch makes the argument that repealing the Human Rights Act “will mean less protection against state abuse or neglect, and weaken the rights of every single one of us – and the vulnerable most of all”, where is the evidence?
The trouble with human rights is that they put a high level of restraint on future legislators to make decisions. Those in favour of human rights want to put certain rights beyond debate, but how can you be sure of what will be best for the future? Better to leave it to the wisdom of future parliaments.
Of course there is the Hitler argument, which was in the minds of the creators of the European convention, that human rights make it harder for a demagogue to inflict their will on a society. I don’t find this convincing. Demagogues will do what they want. Reasonable politicians are needlessly restrained. This is why I would oppose the idea of a British bill of rights too. Better to protect ourselves from government abuses by procedural principles such as restrictions on political advertising, regular national elections and so forth.
In her defence of the Human Rights Act, Scottish first minister Nicola Sturgeon said that it enabled people to challenge the bedroom tax via the courts. Obviously she said this because it chimed with her political point of view. What would she say if someone successfully challenged the Scottish requirement for a simple eight-seven jury verdict under the European convention as not falling within the definition of a fair trial? What would she say if football fans successfully argued that they could sing sectarian songs because they had a right to freedom of speech under the convention?
I imagine she would say that these things were a matter for the Scottish parliament to decide, and not a court. Which is exactly what I would say, too. Political decisions are best left to democratically elected politicians, not human rights lawyers. That should be the UK government’s starting point.
Hugh McLachlan does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.
Authors: The Conversation