Repeal the HRA and learn to trust ourselves again.
The proposed repeal of the Human Rights Act (HRA) has generated considerable opposition, most of which is set up as a defence against the arbitrary power of the state. ‘Surely it cannot be right that a government face no restrictions on its treatment of the vulnerable?’ it is argued. And given that the European Convention on Human Rights — which the HRA writes into UK law — was drafted by British lawyers and supported by Winston Churchill, what possible argument could there be for its repeal?
If the question is posed this way then it does indeed seem rather unnecessary, not to say unhinged to seek its repeal, but — of course — that is not the only way to understand the problem. There is a depressing tendency among those on the left of the political spectrum to reach for expressions of moral outrage, rather than patient inquiry, when faced with a surprising decision. Their habit of seeing the worst in their opponents always seems to dominate any following analysis. For the simple truth is that the difference between supporting and repealing the HRA is really just a question of political culture, not moral iniquity.
A more historicised and contextual account of these ostensibly legal disputes serves to highlight the question of legitimacy and turns attention to how legal judgements become authoritative in the first place. The answers to each of these questions inform the case for repeal of the HRA.
Before the HRA was passed into law, politics and law in the UK had a symbiotic relationship. The government made law through the executive’s command of the legislature, and the judiciary interpreted and administered the law. There were no external bodies involved. Now, this has become increasingly less true as the EU has grown and developed, but Britain’s accession to the EEC was originally framed by the treaties that gave life to it. Since Maastricht, the legal situation has been very complex in fact, but authority is still conducted through treaties, not decision making bodies. The characteristic form European legislation takes is through directives that then have to be enacted in English law before they take on the force of law. If the UK or any country failed to enact directives in law, it would find itself in breach of the treaties, rather than the law.
So far so simple, but the basic point remains that traditionally, English Common Law formed a body of laws and precedents stretching back hundreds of years, the executive sought to govern through statute passed through the legislature. Where new statute law seemed to breach some ancient English or British freedom, the courts might strike the law down, obliging the government to clarify or abrogate the ancient principle, or abandon the attempt to pass the law. This may not seem like much of a restraint but it served the country pretty well for hundreds of years, saw the widening of the franchise, the introduction of votes for women, the abolition of slavery and the ending of the death penalty. The point is that — traditionally speaking — the country acts as its own conscience through the ballot box; the judiciary have a proud record in advancing a liberal interpretation of the law, but when an overmighty government finds itself up against judges with a firm interpretation of the law, they are forced to go back to the drawing board. Furthermore, the natural skepticism of the voting public tends to see them siding with the law, rather than the government.
A example of how powerful judicial interpretation can be might be found in the fraught question of slavery: Everyone knows that slavery was abolished by statute throughout the British Empire in 1833, less people know that slavery had been found contrary to the principles of English law 60 years earlier by Judge Mansfield, a judgement thought by eminent historian Simon Schama to have partly informed the US war for independence, as the growing moves towards the abolition of slavery would have impoverished many of the colonial elite. If there is a grain to human progress, the English judiciary can fairly be judged to have gone with it, rather than against.
Bringing the question up to date, following the recent election results in the UK, a petition has been doing the rounds claiming that repealing the HRA would remove people’s right to an education, right to life etc.. All of which is simply nonsense. Murder remains a crime in the UK, and the Government is obliged to educate everyone. What the petition reveals — if anything — is an impoverished political imagination, that conceives of the individual only insofar as he or she is the bearer of fundamental rights. Without human rights, a government can do what it likes to you, or so the argument goes.
This betrays a startlingly forgetfulness, as rights have an older history than the phrase ‘human rights’ allows. Indeed, the phrase ‘human rights’ was conceived in paternalistic terms as a way of describing human subjects that had no civil or constitutional rights, but nevertheless needed ‘fundamental human rights’. For example, the Universal Declaration of Human Rights proclaimed in 1947 and drafted by Eleanor Roosevelt among others was not incorporated into US law, but was clearly an expression of liberal internationalism. It was something to give to newly liberated former colonial subjects and offered as a partial answer to the horrors of unrestrained state power. So even to talk in terms of ‘human rights’ would once have seemed entirely superfluous when discussing bearers of actual constitutional and political rights, such as citizens/subjects of the US and the UK.
The United States provides an example of a country whose political system is both simpler and more complex than the UK in that there are written documents that set in stone certain principles, and a set of governing institutions tasked with protecting them. If a government wishes to change the constitution, through an amendment, it requires a 2/3rds majority of both House of Representatives and the Senate, followed by a 3/4ths majority in at least 38 State legislatures, meaning no single party can drive constitutional changes through easily. The result has been — as can be seen in efforts towards gun control — a problem. One might reasonably argue that these protections are both necessary and worthwhile, and they certainly produce a political culture that is partisan and highly litigious. One cannot, however, argue that the process is undemocratic. Nor that when laws are passed or the constitution amended, that the outcome is illegitimate.
The whole process is internal to the constitutional framework of the United States. People separately vote for a legislature and an executive, and the Supreme Court adjudicates on questions of constitutional ambiguity. This system puts Supreme Court Justices in positions of decisive authority on constitutional matters without precluding the possibility of amending the constitution, hence the extraordinary struggles witnessed over their appointments, dramatised almost perfectly by Daniel Day-Lewis in the recent film ‘Lincoln’, in which the constitutional abolition of slavery — without reference to any Human Rights Act — drives the narrative.
The contrast with the UK is most obvious in the question of where the checks and balances are to be found. In the US it comes down to the Supreme Court, in the UK, the enormous body of legal precedent, a range of legal documents from the Magna Carter to the Bill of Rights and the Act of Settlement, all informing the decisions of hugely experienced judges of high legal reputation. In other words, changing fundamental rights is institutionalised and highly problematic in the US, whereas in the UK — traditionally at any rate — changing fundamental rights takes political courage, the legitimacy of a sizeable majority, and the focus to push it through layers of informal resistance in the various legislative procedures, committees and conventions that comprise the entire law-making process. And in the last analysis, there are people, with votes, who will have their say.
It appears to be easier in the UK than in the US to alter fundamental rights, but there are checks and balances, and for hundreds of years, the UK population trusted itself to manage without a document setting out the fundamental rights held by individuals. The rights of freeborn Englishmen, had a degree of rhetoric about it, but those rights were, and remain, real and codified by centuries of legal decision and deliberation.
Then along comes the Human Rights Act. Passed into law in 1998 and regarded by many as an important progressive step. In effect however it means that the UK Government is made subject to the judgement of a higher court, or at least a court outside the auspices of the UK’s constitutional framework. A court whose composition is determined by national preferences, whose work is in interpreting — some would say expanding — the meaning of some rather basic articles, contained in a convention (ECHR) that can be adjusted — through protocols — by intergovernmental agreement. Of course, its defenders will say this is to mischaracterise it, that the judges remain English judges and the only difference is simply that they must take into account the principles laid down in the European Convention on Human Rights (ECHR), which was itself mostly written by English lawyers. But again, the key issue is who determines what the articles mean, in legal effect? Not UK judges, or at least, not in the European Court of Human Rights, which is the court of final appeal where interpretation is concerned. Then if there is a judgement that offends against the basic sense of political legitimacy possessed by UK voters, there is almost nothing their elected representatives can do about it.
The idea that writing the ECHR into English law is to domesticate an English invention, supported by Churchill is to completely misunderstand, or even dare I say it misrepresent the constitutional dynamics. Whereas judges previously drew upon hundreds of years of precedent and accumulated legal wisdom about the traditional rights and freedoms of British subjects, now they must add to this a check that the law is compliant with a moving feast of legal interpretation around the concept of fundamental rights encoded in a charter no longer subject to the political oversight of the UK legislature. Furthermore, this charter evolves and is amended by judgments of the European Court of Human Rights, whose judges — unlike English judges — are appointees of every state who is a signatoree of the ECHR and may have next to no legal experience at all, and who routinely draw upon evolving philosophical debates and contemporary mores — again outside of any democratic accountability — when arriving at their judgements.
What this does is introduce a constitutional disjunct. Whereas previously laws were made by government, and administered by an independent judiciary, the government could nevertheless amend the law in accordance with the democratic will. Now, there are legal principles that are completely outside the purview of the government, and settings where decisions are made about rights and freedoms that is not subject to democratic will at all.
This produces what should be familiar and obvious to people today, that politics — traditionally confined to the institutions of democratic governance — now takes place in court. Furthermore, if you want to effect political change, there is no longer a need to secure popular support, cultivate political sponsorship and change the law. Indeed you might do rather better to hire a glamorous or outspoken human rights lawyer, find a test case, fund a pressure group and secure the judgement of the court, after which there is nothing the government can do. It creates an arena where legal rulings are negotiated which are not subject to democratic oversight. It is to subject democratic will to a moral elite, worse it is to disenfranchise the judgement of the people and render them subject to the patrician instincts of their moral superiors.
This can be seen in the cases that have provoked such frustration on the part of both Labour and Conservative governments in the UK. The question of whether prisoners can vote is a long standing fact of political life in the UK. Yet the government has been found to be in breach of the ECHR after a challenge by a handful of prisoners, some high-flying human-rights lawyers, all funded by legal aid. Ask people whether prisoners can vote and there is no question; the answer is ‘no’ by wide margins. And the UK government’s position has long been that this is not a question of human rights. The first judgement that went against them did so on the highly tenuous basis that Parliament had not recently expressed a view, prompting them to do so, to no avail. Essentially, what the court decided was that the question of prisoner voting rights was not a question on which the democratic will could be expressed.
Now, the particular issue doesn’t matter much, really. It’s not going to change very much. But it will oblige prisons to ensure some mechanisms for prisoners to vote. Which, in the scheme of things, amounts to an awful lot of institutional pandering. All because some life-term prisoners wanted to kick up a fuss, and could find no end of human rights lawyers willing to earn some legal aid on a high profile case. They put the government on trial, and won, no matter that 80% of the population think that prisoners should not vote, that a term in prison has always meant a suspension in one’s right to participate in democratic decision making.
Then there is the other matter. That political disputes are increasingly becoming legal disputes. This is because a complex and evolving Charter of Rights becomes the central object in a series of doctrinal debates hashed out in courts rather than political chambers. The result of which is simply that political debate and decision making is downgraded, that power is transferred from traditional political entrepreneurs and activists, to lawyers skilled in frustrating the system and playing to the gallery, under the arbitrating gaze of political appointees from some of the least well governed countries in Europe. It should be stated once again, and it is strange that this principle has been so swiftly forgotten by the left, that the court of public opinion is not a lower court, whose findings are to be routinely disdained.
One last example should serve to demonstrate the disingenuousness that is a hallmark of this debate. In the petition mentioned above — now closing in on 200,000 signatures — it is mentioned that the HRA protects us against the reintroduction of the death penalty. This claim is ridiculous, although it has a slight hint of truth. It is true that if the HRA were repealed, Parliament could, if it felt the need, re-introduce the death penalty without breaking its own laws. It would, however, remain in breach of the European Convention on Human Rights, which is very explicit on the question of the death penalty. And why is the ECHR explicit on the death penalty? Were those kind English lawyers who drafted the original convention so far sighted that they produced a document of basic English legal rights, but amended it to outlaw what was standard English legal practice at the time? No. In fact the ECHR specifically exempted the death penalty from its provision on the ‘right to life’, and was only amended to disallow the death penalty in 2002, under Protocol 13, a full 37 years after the UK Parliament abolished the death penalty.
So why? To answer the question at the top of this essay, why — when the ECHR is a product of English lawyers — has it turned out this way? Why, when Churchill sponsored it, should we downgrade the ECHR from legal articles with statutory powers to treaty commitments? Simple. Because the ECHR and the European Court of Human Rights were designed and sponsored by the UK in order to offer a ready made institutional setting for the protection of basic rights to a Europe shattered by war. It was an act of reconstruction to set the court up. Many countries in Europe had simply been gutted and suffered years of fascist government. Many countries in Europe had no traditions of law bound government to begin with. So we gave them a taste of English institutional genius.
The idea that the English lawyers who wrote the original convention imagined for a second that the UK would ever sign up to be bound by its articles in English law is close to ridiculous. For the simple reason that the convention offers just a watered down version of what Englishmen and women took for granted in their own affairs.
There is a comparison to be made with the Judicial Committee of the Privy Council, which acts as a court of final appeal for a number of former UK colonial entities, now independent. This chamber was empowered as an institution of de-colonisation, a reserve legal body for countries that would take time to develop their own deep traditions of law bound government and perhaps could not draw upon judges of the caliber of senior English judges. As time has passed, many countries that at one time relied on the Privy Council, have now ceded from its jurisdiction after establishing their own supreme court or appeal mechanisms. Suggesting that, as far as the drafters of the ECHR were actually concerned, it would have completed its task when every last country in Europe no longer required it.
To sum up, signing the ECHR into English law marked a decisive break in the development of English law. It inserted the novelty of a charter of rights into a central place in English legal deliberations, which has inserted political deliberation into what should still be a context of legal determination. It has ensured that parliament is no longer decisive over the objects of English law, and ultimately no longer democratically accountable over an increasing penumbra of social and political life.
The remedy, it might be argued, is simply to scrap the HRA and return to our more esoteric, but more accountable relationship between political and legal authority. However, the Conservative government have announced the replacement of the ECHR as an aspect of English Law with a Charter of British Rights, which may simply replicate many of the same problems. However, the one advantage such a situation will have is simply that the Charter of British Rights will be overseen by Parliament, thus if there is an obvious need to change the charter, it will be changed, retaining the symbiotic relationship between formal legality and democratic legitimacy that has always characterised the exercise of English and UK government in the past.
Clearly the notion of a British Charter of Rights takes us a step towards the US version of governance — and the key aspect will be in what threshold of democratic authority will allow a change — but crucially it restores the link between democratic legitimacy and formal legal independence, which, I would argue, is no bad thing, whatever the high-profile, and highly-paid it should be added, human-rights lawyers and politico/legal activists might protest. If democracy matters at all, we should repeal the Human Rights Act immediately.