Ash Wednesday, 2021
The political hobgoblin is at it again.
As this blog has previously averred, this particular politician is a political hobgoblin, adept at at identifying political gaps and then exploiting those gaps so as to inflict misfortune and spread discontent and gain political support.
As such, this politician should be taken seriously – though not on his own terms.
All because an illiberal politician wants others to join some culture war that does not mean that liberals and progressives have to do so in kind.
But quietism is an error too: the old commands to not ‘feed the trolls’ or ‘give oxygen’ are not useful tactics or a sensible strategy to address relentless authoritarian nationalistic populism.
Instead, corrections should be made as publicly as possible, and illiberal ploys assessed for their significance to see what, if anything, can be done practically to combat any appeals of reaction and illiberalism.
Had liberals and progressives reacted differently to the rise of Ukip, for example, and made the positive and informed case for United Kingdom remaining part of the European Union, and for staying part of the single market and the customs union, then the shape of Brexit may well have been different, that is if Brexit would have happened at all.
So what should one make of this complaint about the ‘EU Human Rights Act’?
One reaction is to laugh and sneer at its legal illiteracy: for the ‘EU Human Rights Act’ is not a thing.
The politician(s) saying otherwise know this, but they do not care.
They are getting the ‘likes’ and RTs and claps and cheers anyway.
And liberal and progressive jeers are, for the illiberals, all part of their political fun: the sound of ‘libs’ being ‘owned’.
But if liberals and progressives simply ignore the hobgoblins then that may have the unhappy result of making certain unwelcome legal and policy consequences more likely.
And the Human Rights Act may end up thrown away like membership of the European Union, and liberals and progressives will stand and stare and wonder: how did this happen?
And here we come to the Human Rights Act 1998, which took legal effect twenty years ago, in 2000.
The statute is still there on the statute book – while politicians who have sought to repeal or dilute it, such as David Cameron, Theresa May and Chris Grayling, have come and gone.
This survival may make the act’s defenders and champions complacent.
But the main reason the act has survived – at least on my analysis – is that the Good Friday Agreement provides that the European Convention on Human Rights is directly enforceable in the courts of Northern Ireland.
And one of the things that the act does is to make the convention directly enforceable in domestic courts in a way that would not be legally possible but for the act.
If the Human Rights Act 1998 was repealed then something very similar to that act would need to be put in place straight away, at least in respect of Northern Ireland.
The current political controversy about the position of the north of Ireland after Brexit indicates, however, that nothing about the Good Friday Agreement should be taken for granted.
And liberals and progressives should not thereby rely on the Good Friday Agreement being the means by which the act will survive, instead of making the positive case for the legislation.
After all, the fact that membership of the European Union provided a practical solution to the question of the border in Ireland did not stop Brexit.
After twenty years of legal effect, the Human Rights Act 1998 is still contested.
It has not eventually become part of the political consensus, in the way that other previously contested legislation have done so.
Every general election the Conservative Party will bang on their populist drum about replacing the act with something else.
Part of this perhaps is because of the name of the legislation.
Had the statute instead been called the ‘Interpretation of Legislation and Powers of Public Authorities (Application of Articles of the European Convention on Human Rights) and Related Purposes Act 1998’ then maybe the act’s opponents would be less incensed.
And as the Police and Criminal Evidence Act 1984 – arguably the most important legislation ever passed for the practical protection of civil liberties – shows, the more boring the name for an act, the more it can get away with.
Here, ‘New Labour’ may be blamed, as for many other things.
For as with the Freedom of Information Act 2000, the government of Tony Blair put dramatically named legislation in place, and then did nothing to take the next step of embedding that legislation as part of the political mainstream.
Just passing the Human Rights Act and the Freedom of Information Act but then not promoting a sustainable human rights and freedom of information culture was a big job left undone.
Another reason why the Human Rights Act is still contested is that the news media do not value the legislation.
Indeed, the way the act enabled the courts to ‘develop’ (that is, to invent) an entirely new tort of the misuse of private information was seen as a hostile move by much of the news media.
And had the courts put comparable efforts into ‘developing’ the right to freedom of expression under Article 10 then the news media may have come to see the act in the same way American journalists see the first amendment.
But in practice, Article 10 often seems to be the weakest of the rights provided for under the act – invoked as part of a perfunctory ‘balancing exercise’ before being rejected in favour of privacy rights.
As the eminent jurists Chas and Dave would put it, Article 10 is the sad neglected Mr Woogie of domestic human rights law, and Article 8 is the popular Mr Boogie.
Poor old Mr Woogie.
And what the Human Rights Act gets right is also overlooked.
Take for example the new Hillsborough inquest.
That there was a further inquest able to to explore fully the circumstances of the tragedy was legally possible only because of the Human Rights Act.
The right to life under the act carried with it the duty to ensure that the circumstances of deaths brought about by the acts and omissions of public bodies (in this case the police) were properly considered.
And so even though the tragedy was before the act took effect, the new inquest had to take the wider Human Rights Act-compliant approach.
But you would not know this from news coverage – and indeed many people who follow public affairs would not know this at all.
There are many other examples, but none that have traction in the public domain.
And so we are left with the occasional outrages instead.
Finally, there is the inconvenient truth that the Human Rights Act is not what some of its supporters say it is.
The act is not an especially powerful statute.
It provides a basis for a court to take a right under the convention seriously, but it does little more than that.
Almost all the rights are ‘qualified’ and so can be side-stepped in practice as long as a public authority can show that the interference with the right is proportionate and in the public interest – and these are not high hurdles.
And, unlike what was the case with European Union law, primary legislation cannot be set aside when convention rights are breached.
The Human Rights Act provides a balance between access to the convention rights in legal proceedings and the doctrine of parliamentary supremacy.
The act does not do a lot, but it does enough – and it is far better than nothing.
But a practical and pragmatic case for something that is ideoologically contested is difficult.
Brexit showed this.
So how does one defeat the political hobgoblins?
By realising that there is a case to be made for a thing that is contested – and by making that case.
By patiently correcting errors of the hobgoblins and by being realistic about what one is defending.
This approach, of course, has no guarantee of success.
But ignoring the hobgoblins – or screaming at or along with them – is even less likely to be successful.
And sometimes contests can be won as well as lost.
The outcome of a contest may not be predetermined.
Ask Mr Woogie.
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