Human Rights or a Bill of Rights?

The only pro­gress­ive legal step is to intro­duce so­cial and eco­nomic rights into UK law

The de­bate over the fu­ture of the Human Rights Act (‘HRA’) has been some­what sur­real. The Labour po­s­i­tion is schizo­phrenic. Labour in­tro­duced the Act but was jus­ti­fi­ably ac­cused of vi­ol­ating most of its prin­ciples in its ob­ses­sion with se­curity. But schizo­phrenia is not a Labour prerog­ative. The Tory pro­posals are equally con­fusing. Memories of the Thatcher years with their many vi­ol­a­tions and huge cent­ral­iz­a­tion made David Cameron promise that his Bill of Rights would strengthen liber­ties and en­sure proper demo­cratic ac­count­ab­ility over new rights. Immediately be­hind the civ­il­ized part, the loony Right at­tacks the Act as a vil­lains’ charter, stop­ping the de­port­a­tion of ter­ror­ists, of­fering porn to mur­derers and voting rights to con­victs. The Act is a left-​wing con­spiracy, it claims, cre­ated by per­fi­dious Europeans in­tent on des­troying British sov­er­eignty and in­tro­duced by state fan­atics of Stalinist proportions.

For the human rights en­thu­si­asts, to be against the Act in­dic­ates ig­nor­ance of the law, moral laxity or both. For the Bill of Rights sup­porters, the many vi­ol­a­tions during the Act’s life prove its fun­da­mental flaw. Our pat­ri­otic duty is to re­peal the Act, re­place ‘human’ with ‘British’ rights and re­turn to the age-​old tra­di­tions of the common law and the ‘free­born Englishman’. One wishes that the ar­gu­ments had the elo­quence or philo­soph­ical aware­ness of Edmund Burke and Tom Paine, the first and un­sur­passed con­trib­utors to such na­tional soul-​searching. This is per­haps too much to ask.

The de­bate is our pale ver­sion of the American cul­ture wars. Arguments about the Act dis­guise much deeper rifts. Major so­cial, polit­ical and ideo­lo­gical ant­ag­on­isms are presented in the quaint lan­guage of pro­cedure and rights. The re­la­tion­ship between self, other and com­munity goes under the code names of the broken so­ciety, the ‘big so­ciety’ and the re­la­tion­ship between rights and re­spons­ib­il­ities. The ten­sions between law and demo­cracy are ex­pressed in the ver­nacular of the vil­lains’ charter and the in­di­vis­ib­ility of rights, one of the great red her­rings of the de­bate. Finally, the ten­sion between na­tional sov­er­eignty and im­perial glob­al­isa­tion is dis­guised by the lan­guage of na­tional pride and cos­mo­pol­itan uni­ver­salism as well as dis­agree­ments about ‘eth­ical’ for­eign policy — the most ab­surd oxy­moron of our times.

Let us take a closer look at the European Convention on Human Rights (‘ECHR’) in­cor­por­ated into British law by the Act. Despite ac­cus­a­tions of left or lib­eral bias, the Convention is an ‘ex­quis­itely con­ser­vative doc­u­ment’, as staunch right-​wingers Peter Oborne and Jesse Norman put it in their pamphlet ‘Churchill’s Legacy’.1 The con­ven­tion was in­spired by Winston Churchill, drafted by Tory politi­cian Sir Maxwell-​Fyfe and rat­i­fied by a Tory gov­ern­ment. As Samuel Moyn has con­vin­cingly shown in his The Last Utopia the ECHR was a des­perate at­tempt of the European right and Catholic per­son­al­ists to re-​claim the moral high ground after their eth­ical de­bacle in the World War.2 The Convention was part of the cold war ideo­lo­gical battles aimed at showing the su­peri­ority of the Western way of life. Compared to the eight­eenth cen­tury de­clar­a­tions and the Universal Declaration that im­me­di­ately pre­ceded it, the ECHR was a back­ward step. No eco­nomic, so­cial or cul­tural rights or right to equality exist ex­cept for the pro­tec­tion of prop­erty. Article 14 ban­ning dis­crim­in­a­tion of­fers an­cil­lary pro­tec­tion that must be ar­gued in con­junc­tion with one of the other rights. The key areas of work, housing or im­mig­ra­tion, where dis­crim­in­a­tion is rife, are im­mune from a human rights claim.

Even the civil and polit­ical rights in­cluded are phrased in a con­ser­vative way. No right to res­ist­ance ex­ists. On the con­trary, the Convention al­lows the derog­a­tion of rights in cases of emer­gency, a pro­vi­sion re­peatedly used by dic­tat­orial re­gimes (the Colonels in Greece) and demo­cratic gov­ern­ments (the UK in re­la­tion to Northern Ireland). Restrictions on the polit­ical activ­ities of aliens are al­lowed, an­other major cold war in­ven­tion used today for dif­ferent pur­poses. Substantive rights are re­sidual: the pro­tected en­ti­tle­ment is lim­ited to what is left once the wide and vague re­stric­tions, lim­it­a­tions and pen­al­ties are taken into ac­count. If you go through the second para­graphs of Articles 8, 9, 10 and 11 you will not find many re­stric­tions of rights that cannot be jus­ti­fied by the blanket ex­cep­tions. The Convention of­fers a list of le­git­imate re­stric­tions and lim­it­a­tions of rights and, in­cid­ent­ally, some protection.

All this means that legal realism is the only theory ap­plic­able to the ECHR’s case-​law: the European Convention is what the judges say it is. Who in­ter­prets is much more im­portant than the document’s stip­u­la­tions. The de­bate about the quality of Strasbourg judges and com­par­isons with our own ju­di­ciary, a main­stay of the right wing press, is there­fore cru­cial. Undoubtedly ra­cist un­der­tones hide be­hind the head­lines. It is also true that many states see the Strasbourg judge as an am­bas­sador for na­tional in­terest. In true realist col­ours, the com­pos­i­tion of the bench dealing with a case is often more im­portant than the legal ar­gu­ment. Knowing the pass­port of the judge has re­placed the realist ad­vice to ad­voc­ates to find out what break­fast the judge had the morning of the hearing. But are the dif­fer­ences between Strasbourg and the common law that great?

Let me ask a simple ques­tion. Will people losing their be­ne­fits as a result of cuts and wel­fare re­form be able to in­voke human rights rem­edies? It would only seem fair, since both here and in Europe com­panies have used human rights to pro­mote their in­terests. The first de­clar­a­tion of in­com­pat­ib­ility between British le­gis­la­tion and human rights was given to a pawn­broker (Wilson v First County Trust). In 2009, two hedge funds ar­gued that the na­tion­al­iz­a­tion of Northern Rock, which made their shares in the bank worth­less, amounted to a vi­ol­a­tion of their human rights. Bankers threatened a human rights chal­lenge here and in Strasbourg of the tax on their bo­nuses. They did not bring a case for fear per­haps of the res­ulting op­pro­brium rather than be­cause of the paucity of the legal ar­gu­ment. But this is not unique to Britain. As Upendra Baxi has ar­gued, ‘the power of human rights dis­course has been crit­ic­ally ap­pro­pri­ated by global cap­ital’.3 The cor­porate co-​optation of human rights puts them in the ser­vice of global cap­ital even when they en­tail gross vi­ol­a­tion of the rights of flesh and blood per­sons and communities.

Against this gen­er­osity to­wards the rich, the most vul­ner­able mem­bers of so­ciety have no pro­spect of a human rights chal­lenge of the cuts. The link between in­equality, poverty, ill health, early death and un­der­achieve­ment has been con­clus­ively proven. The government’s prom­ised rights re­forms con­cern ID cards, the scope of DNA data­base and a reg­u­la­tion of CCTV. These re­forms, if they happen, pro­tect pri­vacy, a matter of jus­ti­fied con­cern mainly to the middle class. I do no wish to di­minish these threats. But no human rights remedy will be avail­able to those whose lives will be dev­ast­ated by the cuts and re­forms. Unfortunately our proud British tra­di­tion and the de­rided Strasbourg judges are not far re­moved here.

Let me men­tion one other area in which the sur­vival or re­peal of the Act will have little im­pact. Failed asylum seekers have rudi­mentary pro­tec­tions and, ac­cording to a re­cent re­port, ‘end up living as ghosts on the streets of Britain be­cause of gov­ern­ment policy and de­cision making that strips them of their rights and dig­nity.‘4 They are hu­mans of no hu­manity. They join the un­doc­u­mented mi­grants, es­tim­ated at around 1 mil­lion. This is a shadow hu­manity — without shelter, food, the right to work — that lives a ghostly life in our cities sur­viving on less that one dollar a day. In a doc­u­mentary about the plight of un­doc­u­mented or sans papiers im­mig­rants living an un­der­ground life in London, Jami, who sleeps rough in parks, ad­dresses people like us who, from our com­fort­able homes, keep pro­claiming Human rights, human rights: Whats the dif­fer­ence between me and them? They are human like me. People like me have two hands, two eyes and two legs. Whats the dif­fer­ence between me and them? Human rights, human rights. But where are the human rights for the asylum seekers?5 If, as lib­eral philo­sophy claims, human rights be­long to hu­mans on ac­count of their bare hu­manity and not of mem­ber­ship of smaller cat­egories such as na­tion, state or class, Jami and his friends should have at least the min­imum con­sol­a­tions of hu­manity. They have no human rights.

Echoing a haunting line that links them to a suf­fering hu­manity from Shylock to Primo Levi, Jami, a nat­ural philo­sopher, states an in­dis­put­able truth: we may all be human but hu­manity has al­ways ex­cluded, des­pised and de­graded some of its parts. Humanity is not one: it has al­ways been split between full and lesser hu­mans. Throughout his­tory, the moral claims to uni­versal equality have been ac­com­panied by polit­ical strategies, which have di­vided hu­manity into the fully human, the lesser human and the in­human. For the Greeks the bar­bar­ians, for the Christians the hea­then, for the na­tion­al­ists the aliens, for the co­lo­ni­al­ists the un­civ­il­ized. Today a central di­viding line sep­ar­ates the af­fluent from a growing re­serve army of pre­carious life, pop­u­lating a twi­light zone between leg­ality and crimin­ality, un­em­ploy­ment and ex­ploited under-​employment. The uni­ver­sal­ists argue that human rights be­long to all hu­mans on ac­count of their hu­manity rather than mem­ber­ship of nar­rower cat­egories such as cit­izen­ship, eth­ni­city or class. Bills of rights on the other hand tend to ex­clude by defin­i­tion non-​citizens from their pro­tec­tions. The un­doc­u­mented workers, the single mother losing her be­ne­fits, the Greek and Spanish un­em­ployed youth and the Guatanamo Bay pris­oners are pre­cisely people with no law to pro­tect them. They should there­fore enjoy the en­ti­tle­ments of hu­manity. They have none. There is nothing sacred in the ab­stract na­ked­ness of being human, if not ac­com­panied by state pro­tec­tions. The de­bate between human and British rights leaves equally out­side these hom­ines sacri, the sacred and sac­ri­fi­cial vic­tims of our world. Their plight re­mains the same whether you keep the HRA or pass a new Bill of Rights.

The only pro­gressive legal step is to in­tro­duce so­cial and eco­nomic rights into our law and ex­tend the min­imum pro­tec­tions of hu­mane life to everyone living in the country. Anything less than that is neither hu­man­it­arian nor part of the British tra­di­tion. I will ac­cept European human rights or a do­mestic bill of rights pre­pared to do this. Of course a change in the law and the cre­ation of formal rights does not mean that the ma­terial con­di­tions for their en­joy­ment will be provided. We know that the gap between legal state­ments and life in the world is huge. But the dog­matic and un­dif­fer­en­ti­ated pro­mo­tion of one or the other side in the Manichean Europe or Britain di­vi­sion has not much to do with the rad­ical tradition.

Cos­tas Douz­i­nas is Pro­fessor of Law and Dir­ector of the Birk­beck Insti­tute for the Human­it­ies, Uni­ver­sity of London.

Show 5 foot­notes

  1. Peter Oborne and Jesse Norman, Churchill’s Legacy (Liberty, 2009)
  2. Samul Moyn, The Last Utopia (Harvard University Press, 2010).
  3. Upendra Baxi, The Future of Human Rights (Oxford University Press, 2005)
  4. ‘Dispute over re­port on “des­ti­tute” asylum seekers’, BBC Wales, 4 February 2011, http://www.bbc.co.uk/news/uk-wales-12354073
  5. J. Domokos and D. Taylor, ‘Asylum Seekers: Britain’s Shadow People’ 16 March 2009, www​.guardian​.co​.uk/​u​k​/​v​i​d​e​o​/​2​0​0​9​/​m​a​r​/​1​6​/​a​s​y​l​u​m​-​s​e​e​k​e​r​s​-​r​e​f​u​s​e​d​-​b​r​i​t​ain

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