7th October 2021
This week the lord chancellor and justice secretary – in 2021 – had to resort to a 2009 case – where the law had already changed in 2014 – to support his demand for an ‘overhaul’ of the Human Rights Act 1998.
That was telling.
Those opposed to the Act often seem to find it difficult to find topical examples of cases to substantiate their disdain.
Some resort to blaming cats (and I am not making this up).
And so, if it is not the actual substance of cases under the Act that explains the antipathy to the legislation, what is the explanation?
What are the actual reasons why the Human Rights Act 1998 is so hated?
I think there are four reasons.
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The first reason is its very title and its express mention of ‘human rights’.
For many this title seems alien – and provocative.
It is as if ‘human rights concerns’ are something you tell off foreigners about, rather than it being something that is of any domestic relevance.
The view seems to be that there is no need for ‘human rights’ in regard of the United Kingdom – for we have liberties.
This is, of course, misconceived – both in theory and practice.
In theory – because we have an executive under little or no day-to-day scrutiny, where state officials have unlimited power, and where the legislature has absolute power to make or unmake any law.
And in practice – taking torture, for example, there are documented examples of torture and inhuman treatment by United Kingdom agents in Northern Ireland, Afghanistan, Kenya, and elsewhere.
But we pretend that the United Kingdom is not like that – that we are always the good guys.
Yet the United Kingdom and its agents are as capable – both in theory and practice – of human rights abuses as in any other state.
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The second reason is that the rights that the are given effect by the Human Rights Act are (seen as) ‘European’.
This is a similar sentiment to the hostility to the European Union that contributed to Brexit.
And it is the ‘E’ word that seems to make all the difference.
The United Kingdom has human rights obligations under various United Nations instruments, and few know and fewer care.
We are also subject to fundamental obligations as members of international organisations such as NATO and the World Trade Organisation.
And those who jeer at the ‘E’ word will somehow be horrified at suggestions that the United Kingdom renege on its obligations under NATO and the World Trade Organisation, even if they limit our autonomy in defence and trade matters respectively.
The European Convention on Human Rights (ECHR), however, could not – for some – be more provocatively named.
Had it been called, say, the British convention – and many treaties are named after places – or the Winston Churchill convention, after one of the politicians who supported it – then, at a stroke, the regime would be less contentious.
That the the rights are seen as ‘European’ is, of course, a misconception.
The ECHR instead was formulated in part by British lawyers seeking to codify for post-war European what they perceived to be rights existing in our domestic law.
Had it been called the British convention or the Winston Churchill convention, it would not have been that misleading, given the United Kingdom’s contribution.
But instead the ECHR provisions – and thereby the Human Rights Act – are European.
‘Ugh.’
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The third reason is that the Human Rights provides rights for humans, including the humans many do not like.
The rights are not only for nice people but also for the Other: the people who are so bad or undesirable that many believe that they should be treated inhumanely.
For example: foreign criminals, domestic criminals, asylum seekers, and so on.
Why should these people have rights?
The sentiment is that such people should not have rights, because they don’t deserve them, or that they have forfeited them.
But that is the nature of human rights: you have them because you are a human.
But if the Other use their rights, then that ‘use’ is instantly converted to ‘abuse’.
You may ‘use’ your rights, but they – they ‘abuse’ their rights.
The notion is that those facing the coercive powers of the state – say incarceration or being separated from their families – should smile and nod along with that coercion, and certainly should not interrupt clapping and cheering those being coercive.
But it those who are facing the coercion of the state, especially those where there is no public sympathy, who are most in need of human rights.
If you think about it.
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The fourth reason is about the failure of the Human Rights Act to get ‘buy-in’ from certain media and political groups since its enactment.
Here there is a contrast with, for example, the United States – say if a citizen did not like a particular right in the Bill of Rights (for example, the right to bear arms), that citizen would be unlikely to be in favour of repealing the entire Bill of Rights.
But in the United Kingdom there are many who do not see that the rights in the Human Rights Act protect them as well as the Other.
And part of this is – in my view – the fault of the courts themselves.
After the Act took effect, the courts moved rapidly to ‘develop’ (that is, invent) a new tort of privacy.
A right that was enforced in cases against the media.
But the corresponding right of free expression enjoyed no similar ‘development’ – and over twenty years later, it is difficult to cite a case where the right to free expression has made a difference, let alone led to the ‘development’ of the law.
No United Kingdom journalist, unlike their American counterparts, would ever think to assert loudly and proudly their legal right under Article 10 to free expression.
Had the British courts made Article 10 (free expression) as meaningful as Article 8 (privacy) then the British press would be as horrified at the prospect of repeal of the Human Rights Act as the American media would be at the repeal of the entire Bill of Rights, including the right to a free press.
The populist media of the United Kingdom are not aware that the ECHR and the Human Rights Act protects (or should protect) them as well as the subjects of their coverage.
If the Article 10 right of free expression had been taken half-as-seriously by British judges as the Article 8 right to privacy, one suspects no politician would dare suggest ‘overhauling’ the Human Rights Act as a whole, let alone its repeal.
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As this blog recently averred, at the heart of the issue of the Human Rights Act is symbolism, not substance, and for both ‘sides’.
The Act does not actually do a great deal, but it does enough to make a difference in certain situations.
But the main reason for its repeal (or ‘overhaul’) seems to be the sheer symbolic value in doing so, and the main reason to oppose such moves is the equal-and-opposite sheer symbolic value in preventing those moves.
And so the Act is caught up in political and media battles that have little or no connection to the Act’s actual legal significance.
It is almost as if the Human Rights Act in the political and media imagination has an autonomous existence, distinct from the actual legislation and what that legislation does.
But.
There is a problem here.
A real problem, which sensible liberals should not ignore.
Some legislation – for example, equalities law – can start off controversial but will become less controversial as the years go by.
Laws such as the Race Relations Act were – believe it or not – controversial at the time.
The Human Rights Act – twenty-one years after it took effect – remains controversial and – in good part – unloved.
It has not simply become embedded as part of the political consensus.
And that is a failure.
A failure that cannot be wished away.
So there is a question for all sensible people, who support human rights in general and the ECHR in particular: are there better ways of protecting these substantive rights than by the Human Rights Act?
For it is those substantive rights, and their availability to those who need to use those rights, that are the important things, and not their legal form.
The Human Rights Act 1998 is still not a popular piece of legislation in 2021, and unless those who value human rights think constructively about other ways of enforcing those same rights, there will be a risk that the Act and the rights it provides for will all topple together.
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“No United Kingdom journalist, unlike their American counterparts, would ever think to assert loudly and proudly their legal right under Article 10 to free expression.”
Presumably that is another example of the corrosive and corrupting effect of Client Journalism
It reminds me how lucky we are to benefit from your commentary
Client journalism, vested interest journalism and a state broadcaster frit for the license fee.
Illuminating. Thanks.
Will be interesting to see if the legal obligation to sustain European Human Rights and legal recourse in NI proves any kind of constraint or excuse for inaction.
It’s been said of the Trump administration and attitudes of many of his supporters that “the cruelty is the point”. It seems to be the case also in the UK.
There are many ways this is demonstrated, from cutting welfare for millions to, in effect, seeking impunity for soldiers who murdered or attempted to murder civilians while in uniform. The recent performative displays of “Supporting the troops” loyalty by Tory politicians for a man charged with the attempted murder of a terrified, handicapped boy who ran away when he had a gun pointed at him is particularly chilling. And the characterisation of the prosecution as “appeasement” – – in the same week that Germany brought a 96 year old woman to court for role (as a secretary) in the administration of a Nazi death camp – – and unjust because “terrorists got off”, is clear support for a double standard in upholding the rule of law.
The kind of double standard behind the desire to have different rights for others, whomever they may be.
Attacking human rights legislation is an easy option for a populist government. Partly because many people are illiberal, do not think about the problems inherent in not supporting the rights of those whom you dislike, and are supported by an often despicable press, it is an easy way to get favourable press coverage and votes if you are a politician.
We can hope that our leaders are wise enough to realise that removing the Human Rights Act would leave them with fewer people to blame when they want to appear tough. Alas, with this lot in power, wisdom is in short-supply.
While I don’t necessarily disagree with any of the above, I think the real reason the ECHR is a “thing” is because it’s yet another piece of BS to clog-up the media bandwidth and deflect away from the real problems facing this country. Those real problems being either greatly exacerbated by the current Conservative administration (COVID) or actually created by them (The consequences of their economically illiterate austerity agenda and of course the ongoing Brexit omni-shambles).
I do not believe Raab or anyone else in the Conservative party or their legacy media proponents actually cares about the ECHR in any way, positively or negatively. They are using it as another means to stoke up resentment over non existent problems (see also “statues” and “Rule Britannia” at the Proms). That the current leader of the opposition is a former Human rights lawyer is an added bonus as far as they are concerned, and if you look at the long game that’s going to be the gift that keeps on giving for them when the next GE comes around.
I mean, when you’ve been in office 11 years and things are demonstrably worse then when you took power, what would you do as a political party with no idea’s on how to improve things (and that assumes you even want to improve things) and you have most of the legacy media on your side?
There may be a distinction between (a) why the Act is disliked and (b) the political use to which that dislike can be employed – and on (b) I agree with you.
But if the Act was popular to begin with, then it could not be politically weaponised in this way.
And why do we think the act is disliked?
You imply this in your 4th reason, the act has been framed by a legacy media in such a way as to facilitate their own and their affiliates agenda. It has been weaponised deliberately just as immigration was weaponised (and a fair few other things if we’re being totally honest).
There is a much larger game afoot.
The ECHR forms a part of a wider international legal complex – which has been used to develop customary human rights law. The entire economic and social rights complex. Specifically, the ability to bring cases against UK companies for their subsidiaries’ activities overseas.
The people who oppose human rights law are the same people who claim that there is no such thing as international law. The adoption of such views by Raab is a major shift for the UK’s foreign policy.
I think another problem is the number of people in the U.K. who (wrongly) equated the European Court of Human Rights with the European Court of Justice, and so equated hatred of the E.U. with hatred of European Human Rights. I was always amazed by how many of my educated friends got the two muddled up together.
Great piece, but you are too kind to the press, whose first reaction to the Human Rights Bill was to try to get themselves entirely exempted from the measure. The only “freedom” that most national newspapers value is the freedom to print whatever the hell they like, however inaccurate, partisan, damaging and invasive, and they realise full well that it is extremely difficult to have successful recourse to Article 10 in order to defend their “right” to do so. Most (but not all) national newspapers are not simply Tory but fervently support the right-wing of the party, which is implacably hostile to human rights for precisely the other three reasons which you explain so succinctly. But if newspapers don’t support human rights then they don’t deserve to be regarded as members of the Fourth Estate – or indeed as newspapers in the generally accepted sense.
It is interesting (to me anyway) why a (specific) Human Rights Act was necessary in the first place.
If one accepts that (lets say UK) legislation embodies all that is necessary to ensure proper protection – of the good and the bad – and that there are proper (due) processes that are followed in the courts, to ensure the rights of all litigants are recognized and maintained, surely additional legislation to endorse and enforce this is superfluous?
Unfortunately, in my experience (civil matters) the UK courts do not always properly conduct themselves or observe as above.
It should, of course, but it doesn’t.
One could argue that there should be better and more robust overseeing and remedy for the courts failures. There are not.
So, to answer my own question, maybe that is why the Human Rights Act came into existence.
Maybe the need for a Human Rights Act was driven by an attempt at ‘ordinary’ people being properly protected against the ‘powers that be’.
If – and likely the case – that the above is true, is there not a root and branch review desperately needed, to ensure the ‘establishment’ deal appropriately and honestly with those over which it has control.
In my experience, neither the UK courts, nor members of the legal profession, have much, if any, regards to ‘Human Rights’ (unless it personally suits)
Not too surprising then that the UK Lord Chancellor and justice secretary, representing the judiciary, wants to overall (diminish?) the Human Rights Act.
Maybe it a question of ‘less power to the people; more power to the controllers’, embodied in his thinking?
Ian Dunt in “How to be a Liberal” puts forward the case for the Human Rights Act as a central protection of the Individual (not ‘the People’) in a liberal European State, and that this is a requirement because ‘the people’ are as apt to turn on minorities and individuals as is the State.
But yes – it must be a real thorn in the side to those with an authoritarian bent and a disdain for the Other.
I think the main substantive criticism of it is that the rights are either absolute or are qualified against vague concepts (which in some senses are fairly narrow) such as “necessary in a democratic society”.
This doesn’t allow for ‘simple solutions’ to national scale plans, policies, infrastructure, displacement of people and objects, etc. because the rights must be respected – no matter the economic or social upside, or swiftness of achieving the aim that people have – because this simple solution, or the fix, is not “necessary”. It means nuance, complexity, and dare I say, experts, are needed, and that things move slower.
That’s frustrating if you: (a) are a politician looking to grand-stand; and/or (b) weight certain societal projects (which are unnecessary, but you see as important and value-additive) as being more important than individual rights, in a sort-of skewed utilitarianism point of view.
All very true, but perhaps we should see this “overhaul” as an opportunity not a threat. Let’s vigorously identify where the Human Rights Act is not working properly and effectively in the defence of human rights in the UK, and vigorously remind the Justice Minister of where this is the case.
One thing they daren’t do is ditch human rights altogether and not just because of the Good Friday Agreement. Even trying to dilute them will get them into debates where they find themselves floundering as they seek excuses to unrestrictedly impose the will of ministers on ordinary people.
Nothing new under the sun. To poke the worst nationalistic instincts of the uneducated, hence intolerant, part of the population is a very old tool used by the worst goverments to keep their hold on them and saveguard power. Yet I find surprising that this should be the case in a Nation of great tradition or, rather, that such a vast area of the population be deemed by the UK government to be seriously influenced by such repulsive proposals.
Under fascism, while horrid crimes were being perpetrated in Italy and in the occupied territories, the regime used the slogan “Italiani brava gente” (the good Italian people) to dismiss allegations of any wrongdoing. The message being that we were the good ones, the bad ones were the “others”.
Some sources say that there are still plenty of fascists around and some found it shocking that a niece of Mussolini could be elected the other day as a member of the Rome City Council. But I am not surprised that with that name she would get the votes of some 8,000 citizens out of an electorate of some 800,000. That’s one in a thousand: I reckon we can look after that.
Really interesting article, I wonder whether article 10 rights have not been developed because of the British legal systems love of libel laws.
Yes but a worrying blog indeed with this lot in charge.
With a protective arm around my cat l feel that this Johnsonian Government is coming for both the Supreme Court and our Human Rights because they want to take our rights away and remove the legal protections from those ‘other’ people.
This will enable absolute power to be concentrated in the hands of the Government so they can do what they want with few challenges or checks on their worst excesses.
In turn this will provide the turbo charge for their popularist ambitions allowing Priti Patel to be more successful in her plans to enable the Westminster Government to shirk from it’s ‘Global’ responsibilities in relation to Immigration and Refuge.
In my view, the ECHR and similar international treatise are not ‘popular’ domestically because they pose a challenge. A challenge to which each generation needs to live up to and respect.
We know what happens when these rights aren’t respected, for historians this is all very raw and recent history. It is nevertheless easily forgotten, especially in the UK where we have the myth of that we ‘won’ (read: survived) the war on fascism because we’re special – “You don’t understand, these were written to ensure that Hitler didn’t take over Germany again, not to bother US in going about our daily lives torturing civilians in Northern Ireland.”
The hold us to a standard that is both necessary for the future of the Human Race and not always easy to live up to. People tend to be short sighted and lazy if they have the opportunity.
It’s a bit OT: Came across this article https://www.theguardian.com/world/2021/oct/07/polish-court-rules-that-eu-laws-incompatible-with-its-constitution and I’d be really interested to read your view on this. You have got an ability to make complex legal situations easy to understand plus also provide the political context.
It’d be much appreciated.
As I recall, there have been some similar tussles between the ECJ and the German Constitutional Court, possibly also in other EU member states, and resolution tends to require a bit of flexibility and pragmatism either way, to read EU laws and domestic laws in a way that makes them compatible with each other.
I’m not convinced you’ll see much flexibility or pragmatism on the Polish side in this current dispute, so the result could be interesting.
“No United Kingdom journalist… would ever think to assert loudly and proudly their legal right under Article 10 to free expression.”
That’s because Article 10 is so feeble that it doesn’t really grant any rights at all. There are so many enumerated exceptions that it is easy for legislation to claim one of them and easy for a court to agree.
are there better ways of protecting these substantive rights than by the Human Rights Act?
Exclusively with respect to Privacy and Freedom of expression: Emphatically yes. The abusive behaviour of our governments has caused a rapid growth in the development and public use of a range of free to use technologies that can close to guarantee privacy (OTR end to end encryption techs with network location obsfucation – e.g. Tor / Signal ) and indelibility. This second ‘anti censorship’ category is indeed routinely overlooked though its significance is enormous. Brace yourself and read about IPFS – it’s mind boggling and refreshing for the way it could force a complete rethink about our relationship with information as a social species :) ‘Learn how to use these technologies whether you think you need to or not’, seems to be the sound advice.