Reform of the Human Rights Act – The government’s lack of humanity

Last week the government lost a court case. Unlike ordinary people, who are expected to just pay their fine / do their time, ministers started talking about getting rid of the court.

I wish this was the first time.

In 2019 I helped win two cases against the government. First, the Supreme Court restored parliament after the government sent the elected representatives of the people home to prevent them from scrutinizing its Brexit negotiations. Just days later, ministers declared they would ignore an Act of Parliament requiring them to avoid a “no-deal Brexit”. We went to court and the government backed down.

It did not take long, however, for ministers to seek revenge. They engaged in a campaign of threats (including, at one point, to abolish the Supreme Court) and attacks against judges and lawyers of such viciousness that a recent parliamentary report found that it risked creating the impression that the independence of the judiciary, a key plank of our constitution, had been undermined.

The latest court to feel the wrath of the executive is the European court of Human Rights. A judge ordered that the government must establish that its plan to transport vulnerable refugees to camps in Rwanda was lawful before it could go ahead. In response, ministers and their allies proposed leaving the European Convention on Human Rights, the international treaty inspired by Winston Churchill.

There was a time when the assertion that the government must act lawfully was relatively uncontroversial. More revealing, however, is the arguments made by ministers and their supporters. We are told that the Convention allows “foreign judges” to infringe on “our sovereignty”. When one digs down, however, what the Convention’s critics really object to is treating everyone as equally human. As I was writing my book (Overruled: Confronting our Vanishing Democracy in 8 Cases) I realized that this was not restricted to human rights. The willingness to see others as equally human is not just the key fault-line running through our democratic crisis, it’s the fault-line running through our politics.

The Convention codifies, and thereby makes a reality, the qualities essential to human dignity in society. The rights it enumerates flow from our very humanity, regardless of nationality, race, gender, or any other quality outside our control. It established in law, for the first time in history, that we all share an equal basic humanness. Over 63 years of its existence, the Court of Human rights has intervened, on hundreds of occasions, to force the British state to treat it’s citizens with basic human dignity. Claims before the Court ended the criminalization of homosexuality, the torture of prisoners, and required public authorities to properly investigate child abuse (these are just three examples of hundreds, several more can be found here). In 1998 the Human Rights Act allowed Convention claims to be litigated in domestic courts, thus opening up human rights to those who could not afford the (often years long) Strasbourg litigation.

The Convention’s critics adopt the Victorian view of “sovereignty” rejected by Churchill and the other framers of the Convention. They think sovereignty belongs to the state (in practice, to the government). This was the pre-convention view – when states could do what they liked within their borders without censure from their neighbors. It was a view of sovereignty which enabled European powers to commit atrocities across their colonies and at home. Just a few years before the Convention was signed, British forces massacred peaceful protestors in Amritsar, sports fans at Croke Park (for the crime of jeering at them), and sent troops against striking miners at Tonypandy. Anyone who thinks “that sort of thing can’t happen here” should read their history. The Convention embraced a new type of sovereignty – of the people establishing that the state must treat us with basic dignity, even within its own borders. Neither the Convention nor the Court present is a threat to the sovereignty of citizens, only the unlimited power of the government.

The objection to “foreign judges” is, in this light, rather strange. The Convention is an international treaty enshrining rights that flow from our humanity, not our nationality. It is right that each state party contributes a judge to the court that enforces the Convention. Since judges are equally human, only their relevant legal expertise and objectivity should matter, not which section of the map they happen to be born in. In any case, to make sure national cultures and democratic legislatures are respected, the Convention makes provision for laws passed democratically to be given weight (part of the problem with the Rwanda plan is that the government tried to begin deportations without first obtaining Parliament’s consent) . One can only object to “foreign judges” if you do not think everyone is equally human. Indeed, the government is currently proposing replacing the Human Rights Act with a British Bill of Rights. We are told it will contain only the “British rights”. This begs the question: why are British citizens deserving of fewer rights – less human – than our European cousins?

The human rights debate is, however, just the latest (and perhaps most extreme) in a long line of episodes that expose the powerful difficulty they have with seeing others as equally human. In the 00s the Coalition government imposed a series of degrading tests on disabled people seeking state support, boasting of its measures to humiliate “skivers”. Some government MPs speculated that the poor should be sterilized. Last year, as the latest “cost of living crisis” began, majority MPs laughed and jeered as one member tried to bring the plight of disabled people to the government’s attention. We see, almost weekly, ministers making “gaffes” in television interviews on the cost of living crisis but we rarely look for the underlying reason – they are simply unable to empathize with those they see as less human.

Immigrants and refugees are, of course, the victims of some of the state’s most extreme dehumanisation. Ministers and their allies have, indeed, barely concealed the fact that they see those seeking sanctuary (whether political or economic) on these shores as less than human – describing them as a “swarm”, “flood”, “tidal wave”, “ invasion ”and even“ cockroaches ”. In the Rwanda plan they are pawns – there to be beaten and humiliated so the government can stir up culture war talking points in advance of by-elections this week.

Our contested humanity is the essence of the democratic crisis described in my book. Democracy is, as described by Abraham Lincoln, “government for the people, by the people, and of the people”. How can the government and its allies attack human rights while still claiming to be democrats? Because they don’t see most of us as people.


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