Opinion: Should liberals fear a review of Human Rights legislation?

There is a strand in Liberalism stemming from the Utilitarians that is totally dismissive of the concept of human rights. Bentham called such rights ‘nonsense on stilts’. John Stuart Mill, often considered the founder of modern liberalism, viewed such rights as individuals were conceded to have as depending on what led to the greatest happiness of the greatest number at any one time. Rights could change as circumstances and individuals did.

Given that, it is perhaps surprising that Liberal Democrats seem to fear, almost as a knee-jerk reaction, any call for a review of Human Rights legislation. After all Schedule 1 of the Human Rights Act qualifies nearly every right it declares and anyone who has surveyed the field knows how difficult it is when one finds oneself in a complex situation where different and apparently conflicting rights are in play.

One can be very fundamentalist about it and claim that the legislation as framed is the full, final and wholly transparent revelation of the truth about human rights.

A more rational view (let’s exclude Daily Mail columnists here) is that looking at the operation of legislation is at least as interesting as its formulation, and should cause little alarm.

I happen to believe there is a coherent intellectual basis for human rights. However, avoiding a debate and assuming these matters are all self-evident and simple (as though people’s rights and their exercise is ever as evident as the nose on their face) is handing ammunition to those who implausibly suggest that all talk of human rights is a covert way of promoting some leftist ideology.

* John Pugh is Lib Dem MP for Southport.

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19 Comments

  • I really do get exasperated at all this talk about the Human Rights Act.

    Presuming we remain signatories to the ECHR (a constant that all but the blue-est Tories accept), a change of any form in the HRA act will leave us with fewer protections?

    Perhaps a few more rights may be enumerated on top of them, but it to my mind seems impossible for us to remove the domestic incorporation of the law (given that not incorporating changes nothing in terms of the ECHR’s ability to force us to change conflicting laws, but would add a huge cost to claimants trying to get justice).

    As for the point on Human Rights as a concept, I personally accept fully that Human Rights as a global phenomenon are ‘nonsense on stilts’. Relativism of rights means that we simply cannot criticize china for abridging rights of speech from some objective viewpoint, given that from the same viewpoint we also abridge free speech (vis hate speech).

    In the European dimension however, it is quite clear that the continent’s moral and practical approach to human rights are similar enough to overcome any relative differences of opinion over them. In short, I agree with your practical conclusion, just not your underpinning assertion.

  • Would anybody complain if we replaced the HRA with a bill of rights worded the same as the US bill of rights? That should keep both Tories and Liberals happy.

  • Grammar Police 25th May '10 - 3:11pm

    @ Richard, it depends whether you would also like to give the UK Supreme Court the right to strike down UK legislation as unconstitutional.

    Dominic Grieve’s pronouncements on the Human Rights Act before the election are relatively encouraging – see here: http://ukscblog.com/what-now-for-the-human-rights-act.

  • @Richard: If we do, they would have to be on top of the existing framework. The HRA is about giving domestic effect to the ECHR rights, and it would be preferable for those rights to be specifically enumerated in domestic law rather than having judges try to fit them into a US-style bill of rights. In terms of jurisprudence, the wording can have a huge effect (the approach to the 1st amendment in the US is massively different to Article 10, despite effectively guarding the same right.

  • Not all human rights are “relative”. The prohibition of torture (Article 3) is absolute and admits of no exceptions whatsoever. Similarly, it is doubtful if the courts would ever allow an exception to Article 1 of the First Protocol (the state cannot seize one’s lawfully acquired assets without compensation). The HRA requires that English courts follow the jurisprudence of the ECHR. This means that the Convention is applied uniformly across signatory jurisdictions and there is a degree of certainty as to its limits.

    The notion of human rights means that there are limits to what the state can do, even if it has an electoral mandate. To achieve this, some form of entrenchment is required. While Parliament cannot bind itself, something close to entrenchment is achieved through the requirement that legislation is interpreted to conform to the Convention and that a simplified procedure is available for Parliament to correct laws that are found to be incompatible with Convention rights.

    Authoritarian conservatives dislike human rights because they believe that people are the property of the state, something they share with socialists. They do not accept that the power of the state should be limited. They hold that the state needs to be protected against the individual rather than the other way round.

  • @Sesenco: I do disagree. Even where human rights are unqualified and absolute, you can relatively justify them.

    We don’t consider detaining someone in shoddy prison cells torture, because as a society we consider it tolerable.

    In the US, it appears that they are no longer certain (in public debate and in official policy) on what torture is, given the recent ‘enhanced interrogation’ furore. While the US is still (in my opinion) bound, because they did in the past treat those actions as torture, I think it’s quite easy to see how a state can call something a legitimate form of punishment which to us in the Uk would clearly be torture.

    I still think we should uphold human rights, I just think that once you go beyond a local/shared understanding in a region, it becomes very difficult to call a right absolute, when another party can simply point out that your understanding of rights aren’t absolute or precise in definition either.

  • Paul McKeown 25th May '10 - 6:42pm

    Review the HRA: it depends what you think needs reviewing. Certainly not to implement any sort of Neanderthal thuggery that would be supported by the Daily Mail. Say what you want to review and why, then we can have a conversation.

  • While I am fully in favour of Human Rights, I find the idea that they are in some way a natural expression of the human condition to be ridiculous. They are the result of centuries and millennia of work at building civilization and advancing the human race, work that I am doubtful is yet done, and should never be immune to review or critical analysis.

  • C H Ingoldby 25th May '10 - 9:18pm

    There is an idea that if you label some legislation as being about ‘Human Rights’ doesn’t mean that it necessarily is anthing to do with actual Human Rights. The ECHR often seems more like a lawyers charter than a document framed to protect peoples human rights.

    It would be a very sensible thing to take a long hard look at the Human Rights legislation, what we want it to achieve and how it works in practice.

  • @Grammar Police
    “it depends whether you would also like to give the UK Supreme Court the right to strike down UK legislation as unconstitutional.”

    Absolutely would, combined with a clause that would require changes to go through a referendum.

    @Justicia
    “and it would be preferable for those rights to be specifically enumerated in domestic law rather than having judges try to fit them into a US-style bill of rights”

    Unfortunately, we have seen what happens when things are enumerated in domestic law, the rights can be ignored, or the population can be divided into those that deserve the rights and those that don’t.

    @Sesenco
    “are limits to what the state can do”

    However, those limits don’t include some of the basics that have been our right for a very long time, e.g. the right to trial by jury, the right to hear the evidence against us, the right to face our accuser, the right to not to have the state being overly intrusive, the “home is castle” right – I’m sure people on here could add to that list.

    “conservatives dislike human rights because they believe that people are the property of the state, something they share with socialists”

    Add Liberals to that, the very fact that you want to keep it in the control of the politicians shows that you’re not much better at heart.

    In all honesty, I couldn’t really give a cuss what it is called, call it “Mrs Beatons Rights Recipe Book” or the “Look At Us So Gooood Liberals Book of Rights”, but the only way that you’ll guarantee the rights is to take the control away from ALL politicians.

    If we had to remove ourselves from ECHR as a consequence so be it, however as most of that seems to be based on our ancient rights I don’t see a big issue with it – as long as our rights under (*enter name for for whatever it’s called here*) can not be watered down (i.e. they have primacy).

  • It’s plain wrong to say that utilitarians are “totally dismissive of the concept of human rights”.

    When Bentham talked about “‘nonsense on stilts” he was referring to the idea of ‘natural’ rights. He believed that rights are created by humans and only meaningful if they are enshrined in law. Many contemporary human rights lawyers would take the same view.

    John Stuart Mill was a strong advocate of human rights. He simply believed that the justification for those rights is that they further human happiness.

    I also don’t think it’s very controversial to claim that rights are not absolute but can, to some extent, “change as circumstances and individuals [do]“. Human rights often clash with one another. And if you take any human right I think most people can imagine some very extreme circumstance in which that right should be set aside. We should distrust any moral principle that claims to be absolute.

    Why are cheap attacks on utilitarians so popular among those who write about moral philosophy?

  • @Modicum

    “I think most people can imagine some very extreme circumstance in which that right should be set aside”

    A valid point, but surely the true test of how we feel about such rights isn’t what we do in the good times, but what we do in those extreme circumstances.

    At present or even with the proposed reviews, how do you prevent the rights being eroded because a particular solution is the easy way, rather than a harder method that would help preserve the rights?

    I’ve banged on about this for ages, both here and on Labour/Conservative blogs – you can’t make politicians the guardians of our rights as they are the ones who have the greatest incentive to botch them when the going gets tough.

  • @Sesenco:

    “To achieve this, some form of entrenchment is required. While Parliament cannot bind itself…”

    I think that if Parliament clearly intended to make an exception to the principle of parliamentary sovereignty then the courts would respect that decision, especially if it had clear popular legitimacy. For example if the entrenchment of the Human Rights Act was approved by referendum I can’t imagine that the the courts would allow Parliament to ignore the entrenchment later.

    Alternatively there is a simple way to entrench the Act without doing away with parliamentary sovereignty. The Parliament Act could be amended to exempt the Human Rights Act from its provisions. Then the upper house would have an absolute veto over changes to the HRA, which would be a strong protection.

    David Cameron once proposed this as a way to entrench a new Bill of Rights. Now that he is in power I don’t think he’ll want to give away power in that way though.

  • @Chris_Sh:

    “surely the true test of how we feel about such rights isn’t what we do in the good times, but what we do in those extreme circumstances.”

    I totally agree.

    By an extreme circumstance I don’t mean that politicians decide there is a “war on terror” or the Daily Mail feels we need to shoot more burglars. I’m also hostile to the idea that a bill of rights should be suspended if there is a real war or state of emergency.

    I was just making an abstract point about moral philosophy, to defend utilitarianism from the common charge that it is weak on human rights.

    I think that, unless one lacks imagination, there is always some possible scenario (even one so unlikely it will never occur in practice) in which a right should be over-ridden. So believing that rights are not 100% absolute is (1) a common sense view, (2) consistent with believing in very strong, entrenched human rights protections, and (3) not the same thing as being “totally dismissive of the concept of human rights”.

  • @ Modicum
    In my mind the best method to protect such rights would be to make it harder than trying to find a better solution. For instance, a clause in any Bill of Rights (for the want of a better title) that would allow suspension of rights when a state of emergency is declared.

    However, politicians would be required to seperately justify the reason for suspension on each clause to a court that had specific remit for deciding if such a suspension should be allowed (probably the Supreme Court as things stand).
    Such suspensions would have a sunset clause (of months, not years) and the Government would be required to re-justify if they wanted to extend any suspension, otherwise the right would automatically come back into force.

    Like I say, it has to be taken out of the hands of politicians.

  • A few points. Supporter of the HRA ( I used to be one) say if you are against the HRA you are against human rights. Not so. All the fundamental rights in the ECHR were protected before the HRA. Meanwhile the Act provided no significant protection against the erosion of liberty by New Labour. It has however undermined democracy and public safety. A few examples –
    The act takes decisions out of the hand of elected representative that should be left there. So, in the case of Nadine Schlumpf v Switzerland the courts ruled that there is a fundamental right to a sex change at public expense, within a reasonable length of time, even if you can afford to pay for it yourself. How many sex changes we fund versus how many hip operations should be a political decision.
    This is an example of bogus rights invented by Strasbourg. Another would be the right for a pre operative transexual convicted of attempted rape of a woman to be housed in a womans jail.
    That is an example of a right that puts others at risk. Another is the case of a paedophile rapist who was judged a very high risk of reoffending and was kept in custody after his sentence pending deportation. Although the ECHR clearly states we can do this the courts said we couldn’t as there were no flights to his country accepting involuntary returnees.
    Liberals say rights for criminals must be protected if anyone is to have rights. True in the case of the right to a fair trial. One can’t restrict it to the innocent as one needs the trial to determine guilt or innocence. But let’s not pretend that the right of a child rapist to have the freedom of the country somehow protects the right of a child not to be raped.
    Also we are told that in the abscence of the HRA there would be more Strasbourg judgements against us. Well what of it? If the judgements are ludicrous (and they frequently are) we shouldn’t care. We only are bound to comply with a particular judgement in a particular case and to pay the compensation ordered to a particular litigant. We don’t have to change the law for or pay compensation to all presumptively alike cases. Strasbourgs judgements are a lottery depending on the judges chosen. In an apparently similar case the courts may make up some reason to rule in our favour. And the Court can only consider a small fraction of cases. Also unlike the EU courts Strasbourg has no teeth. Italy and France deport terrorists even when the Court says no.
    Finally the proportion of prisoners who are foreign nationals has increased year on year since the HRA and is two and a half times what is was. We will keep adding to the pool of non deportable trouble makers till the oldest start dying. Hardly a recipe for racial harmony. And deportation is barred not just when people lives are at risk but for all sorts of reasons eg right to family life, lack of free health care at home etc.
    Let’s repeal the act and not replace it. Public vigilance is the guarantor of rights not parchment barriers.

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