There is a classic debate around human rights, which can be exemplified by converation below between the fictional avatars of the readers of two thinly disguised publications:
Torygraph: Human rights only help criminals, asylum seekers and the unemployed!
Grauniad: No, human rights are for everyone.
Torygraph: Well, how does the Human Rights Act help me then?
Grauniad: You already had those rights.
Torygraph: There you are: it only helps criminals, asylum seekers and the unemployed.
[Repeat ad infinitum]
Whether it’s the Human Rights Act, the European Convention on Human Rights or any other legally enforceable convention, this is an age-old debate but, while some presentations of it are indeed facile, at the heart of it there is a more fundamental question: to what extent do fundamental laws protect, and are seen to protect, everyone?
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It should be emphasised, this is not a post about the constitutional position of the Human Rights Act, or about whether we should leave the European Convention on Human Rights. These arguments have been well put forward elsewhere: those interested can read the piece by former Supreme Court Judge Lord Sumption here, or a similar (but unpaywalled) piece by a senior Oxford legal scholar here. A rebuttal, by a professor at Leeds writing for the Constitution Society, can be found here.
This is, rather, a much more simplistic look at to what extent Human Rights law in Britain has moved beyond being a tool of the progressive left, to being something that can deliver increased rights across the political spectrum. For with society’s centre of gravity shifting sharply to the progressive left over the last twenty years, in its laws, educational and cultural institutions and business, one would surely expect to see such cases arising.
Of course, someone will at this point say that the European Convention on Human Rights began as something that enjoyed cross-party support, with Churchill helping to devise it and Attlee taking us into it. That is true, but the ECHR is no longer the ECHR of Churchill and Attlee. To quote from one of the pieces above:
The problem with the ECHR, then, is not that it is an international treaty. The problem is that the Court has made it into a dynamic treaty. Rather than simply upholding the terms agreed by the member states, the Strasbourg Court has, since the Seventies, said that the ECHR is a “living instrument”, the meaning of which changes as the Court decides a succession of cases and divines a changing European consensus.
Deploying this approach, the Court has remade the Convention, imposing far-reaching new obligations on states and driving its own vision for social, moral and political reform across Europe. Most strikingly, the Strasbourg Court has invented a whole new European law of immigration and asylum which has no foundation in the text. But the Court’s case law distorts legislative deliberation and government policy-making across the field, including in relation to welfare policy, social policy, penal policy, counter-terrorism, military action, housing, taxation and press freedom.
There is, as a result, a vast gap between the express terms of the ECHR and the case law that the Strasbourg Court now applies.
And indeed, it is since the Court formally adopted that ‘Living Instrument’ doctrine in 1978 that opinion on the right has begun to shift against the court, taking. But as long as a law is seen as a partisan tool of one faction, it will be vulnerable.
Interestingly, human rights law’s close cousin, the Equality Act 2010, has recently taken some steps into demonstrating that it may indeed be there to defend a much broader group of people. It helps, of course, that many people across the political spectrum, myself included, know women who have been constructively dismissed for becoming pregnant, or shortly after upon their return to work, and few can doubt that without such protections these numbers would be much larger. But a number of recent cases have been even more interesting in demonstrating who is protected.
A series of court cases have protected the rights of gender critical(1) individuals who have been dismissed from their jobs or otherwise harassed or discrimated against; since the linked Parliamentary brief was written, a number of other cases have confirmed this. I know of Christian churches who have cited the Equality Act to prevent local councils from discriminating against them on matters such as hall hire, citing the protections against religious discrimination. The finding that the RAF had unlawfully discriminated against white male applicants is, again, unlikely to have been a circumstance that was imagined when discrimination laws were first brought in.
If you are a progressive reading this and are angry that employers are no longer allowed to sack eveil ‘TERFs’ whenever they find them, or that the RAF was thwarted in its noble pursuit of ‘equity’, I have a webcomic for you(2). And if you are a conservative reading this and wish to point out that there are many problems with the Equality Act, such as the Public Sector Equality Duty which drives public bodies to promote politically contested progressive stances, its highly variably interpreted definition of ‘harassment’, or the fact that it still permits many forms of ‘positive action’ that verge on direct discrimination, I wouldn’t disagree. The Equality Act needs reform.
But nevertheless, these cases do show that the Equality Act has some potential to protect those across the political spectrum – including those who are outside the broad progressive coalition. It is not simply a weapon of the left, a means of continuing progressive politics beyond the ballot box, but rather something that can protect individuals against the excesses of the left, as well as the right. And for those who like that law, this is a good thing, for it greatly increases the base of people who have a reason to support it, and who would protest if it were removed.
The Human Rights Act, and the European Convention on Human Rights, by contrast, have not. The Living Instrument doctrine has carried the progressive banner boldly into ever new territories, whether that is demanding that prisoners receive the vote, creating extensive new justifications for protesters blocking the road or destroying property(3), or dramatically expanding the reasons why people cannot be deported, for example stating that rapists cannot be deported if they are receiving medicine from the NHS. Meanwhile, there has been no comparable expansion of scope for rights that do not fall under the progressive banner.
Notably, Human Rights law proved entirely ineffective at curbing the excesses of Government intervention during the pandemic. I think particularly of the rules which forced people to give birth or die alone, utterly inhumane provisions which went against basic humanity. While reasonable people can disagree on the necessity of more wide-ranging and impactful measures, such as school closures, the neglible contribution of the birth and death isolation rules to infection rates(4) and their impact on what are rightly seen as fundamental human moments of life importance makes them impossible to justify.
A more fundamental, and long-term failure, has been the apparent near abandonment of the Human Right of parents’ right to choose the education they see fit for their children.
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.Article 2, European Convention on Human Rights
A similarly worded right appears in the United Nations Declaration of Human Rights.
Yet while the rights related to prisoners, protesters and migrants have been steadily increased, such that much that was once permitted is now deemed unlawful, in this case, the courts have been happy to allow a steady increase of (progressive-coded) state power and the erosion of parental rights. This right did nothing to prevent the removal of the parental opt-out to Relationship Education in the UK(4) last decade, even as schools have begun teaching ever-more radical views on gender and pornography. They did not prevent these laws being extended to academies or private schools. Indeed, the courts have now ruled that a school need not even disclose the content of the material, nor the name of who is teaching the class, as the commercial interests of the outside provider outweigh the rights of the parents. It has not prevented bans on smacking in Scotland and Wales, nor helped parents to push back against the teaching of radical and contested political views such as critical race theory. It has done nothing to prevent home-schooling from being banned in countries such as France and Germany.
Nor do I remember any significant cases in the last decade – in other words, since these sadly became partisan matters, rather than bases of the common liberal position – of human rights law cases standing up for freedom of speech, freedom of association or the provision of essential services such as banking. Such successful push back there has been in these areas has largely taken place outside the auspices of human rights law.
Why the difference? It may be because the Equality Act is a purely UK law, and UK judges have largely – with the odd exception – shown a comparative respect for the original text of laws, for Parliamentary intent and for the sovereignty of Parliament. The UK courts have declined to overrule Parliament on matters on such as assisted dying or same sex marriage – and I have no doubt that the fact that the latter was implemented by a democratic Act of Parliament, rather than by a fiat of the courts, has contributed to its rapid and widespread acceptance. Meanwhile, Human Rights law, whether in the UK or European courts, is heavily influenced by the decisions of the Strasbourg Court which has eagerly embraced the living instrument doctrine.
Equality before the law is fundamental Peoplmay not like unjust laws, but nothing can undermine a law more rapidly than a belief it is being applied unfairly – as we have seen in the anger over recent days, as it appears that misgendering someone, sending an offensive tweet about Captain Tom, attending a vigil for Sarah Everard or displaying racist dolls is more worthy of police and court attention than calling for jihad on the streets of London. This is a danger with any form of ‘underpinning’ or ‘constitutional-esque’ law, but it is greatly exacerbated where a living instrument doctrine is adopted, which inevitably sees the law being increasingly interpreted through the lens of the society-segment from which senior judges are drawn (which may not, indeed rarely does, reflect wider society).
So are human rights for everyone? It would appear not. While develop8ng case law has systematically extended rights, and restricted government’s freedom of operation in some areas – largely those coded as progressive – it has turned a blind eye to the steady erosion of others, and been complicit in the steady expansion of state power against the individual, provided that state power is progressively coded.
Everyone grumbles when a court judgement they dislike comes down, and that will never change. However, it is no stretch to say that overall support for the human rights edifice might be higher amongst conservatives if they saw the courts defending free speech, or the rights of parents to determine the nature of their children’s education, with the same readiness it leaps to extend the rights of criminals or illegal immigrants.
Judicial purists such as myself might continue to talk about Parliamentary sovereignty or the perils of the living instrument doctrine. My basic belief is that these conventions should be used to defend fundamental rights, such as a fair trial or the prohibition of torture, not extended into matters that should be the domain of domestic parliaments, such as noise abatement. But in the broader court of public option, the greater danger for those who wish to defend human rights law is not overreach, but its lack of even-handedness. The original Convention protected rights and freedoms treasured by both left and right alike. If human rights law becomes simply another weapon of the progressive left, with which to carry on the struggle by extra-parliamentary means, then it must expect to stand and fall as such. For it is nly by widespread relevance can institutions that aspire to universality maintain a broad base of support.
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(1) ‘Gender critical’ refers to people who believe that biological sex is both real and more important than people’s self-identified ‘gender identity’.
(2) I actually wanted to refer you to the better xkcd flowchart about this, but was unable to find it.
(3) It is no coincidence that there has been a surge in this form of protest since this decision.
(4) Approximately ten times as people go to school on any given day as were born during the whole of the pandemic.
(5) Technically, parents can still opt out of the parts that are purely about the biological teaching of sex; however, the majority of what is now Relationship Health and Sex Education cannot be opted out for.