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’.1Peter Oborne and Jesse Norman, Churchill’s Legacy (Liberty, 2009) 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.2Samul Moyn, The Last Utopia (Harvard University Press, 2010). 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’.3Upendra Baxi, The Future of Human Rights (Oxford University Press, 2005) 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‘Dispute over report on “destitute” asylum seekers’, BBC Wales, 4 February 2011, http://www.bbc.co.uk/news/uk-wales-12354073 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’: ‘What’s the difference between me and them? They are human like me. People like me have two hands, two eyes and two legs. What’s the difference between me and them? Human rights, human rights. But where are the human rights for the asylum seekers?’5J. Domokos and D. Taylor, ‘Asylum Seekers: Britain’s Shadow People’ 16 March 2009, www.guardian.co.uk/uk/video/2009/mar/16/asylum-seekers-refused-britain 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.