Friday, 3 October 2014

A Bill of Goods

David Cameron has promised that a Conservative majority government will abolish the 1998 Human Rights Act and introduce "a new British Bill of Rights, passed in our Parliament, rooted in our values". For good measure he added "This is the country that wrote Magna Carta" and "We do not require instruction on this from judges in Strasbourg". This "pledge" has predictably been interpreted by the rightwing press as a welcome rejection of Europe, continuing the deliberate confusion of the 1953 European Convention on Human Rights (actually a triumph of conservative British jurisprudence) with all things Brussels. Critics also forget that the 1998 Act was passed in order to "bring rights home" by incorporating the Convention into statute and making UK courts the chief adjudicator of breaches, thus minimising the need for recourse to the Strasbourg court.

The Tories' outline proposal focuses on three changes: repealing the 1998 Act, incorporating the original text of the 1953 Convention into primary legislation, and "clarifying" the Convention rights to "reflect a proper balance between rights and responsibilities". The first two are a wash. The significant change is the introduction of the dubious notion that rights entail responsibilities. Much the same rhetoric was employed by New Labour, indicating its centrality to neoliberal ideology: the contractual nature of citizenship. The justification of these changes combines an appeal to tradition and a rejection of continental rationalism in favour of British pragmatism, which is captured in the proposal's opening paragraph: "Britain has a long history of protecting human rights at home and standing up for those values abroad. From Magna Carta in 1215, to the Bill of Rights and the Claim of Right in 1689, and over the centuries through our Common Law tradition, the UK’s protection of human rights has always been grounded in real circumstance, rather than simply being a matter of abstract principle".

According to a leaked version of an imminent Tory press release, the new bill will provide "a proper balance between the rights of citizens and their responsibilities in our society, and in particular to limit the ability of those who threaten British citizens or society to use human rights laws to protect their interests at the expense of the victims or potential victims". This hints at the true British tradition, which is that some people's rights are superior to the rights of others. In other words, rights are privileges and thus a species of property. The press release includes various tabloid-friendly examples of what the changes will mean, focusing on foreign criminals and illegal immigrants, but the supportive quotes from Tory worthies are more substantial, highlighting "restoring parliamentary sovereignty" and restoring "common sense". The appeal to "restoration" is obviously a theme with an impeccable pedigree, going all the way back to the Norman barons' claims to be restoring the ancient rights of the Anglo-Saxons.

Magna Carta was a contract of privileges between the King and landed magnates. Far from being uniquely English, this was common practice across the continent. Its significant innovation was a clause that empowered a committee of barons to over-rule the King if he breached the terms of charter. It was this that would give the document its symbolic value in the 17th century struggle between Crown and Parliament. There are only 3 clauses that have not been subsequently repealed. These confirm the liberties (i.e. property rights) of the Church of England, the liberties and customs of the City of London, and the right of freemen (farmers with freehold rights) to legal due process. As Gerrard Winstanley would later put it: "Clergy and Gentry have got their freedom, but the common people still are, and have been left servants to work for them".

Like Magna Carta, much of the 1689 Bill of Rights has either been repealed or fallen into disuse, such as the prohibition on a standing army or the right of Protestants to bear arms. The key provisions concern the independence of judges from royal interference and the veto of Parliament on all new taxes. The Bill also established freedom of speech, but in the limited sense of speech within Parliament (i.e. what we now know as Parliamentary privilege) and the publication of debates. This was a bill of rights for the few, not for the many. As with so much of the British constitution, it is held up as a symbol of principles (our ancient freedoms) but is devoid of principle in practice. This is the elevation of the terms and conditions of a commercial contract to the status of philosophy.

The appeals to "common sense" and the notion of "balance" are intended to suggest that absolute, unqualified rights are not for us. In fact, the rights enshrined in the European Convention on Human Rights are already qualified, in part because they were heavily influenced by English jurisprudence. For example, free expression (article 10) "may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary". A British Home Secretary could hardly ask for more.

Compare and contrast to the First Amendment of the United States Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances". The dominance of the US model in popular culture leads most people to think of human rights in absolute, non-negotiable terms, but this approach is the exception rather than the rule, not least because it is often found to be impractical - e.g. the passage of time can make certain rights problematic, such as the right to carry a rifle up to the gates of a school, or the White House.

The postwar European tradition, influenced by British legal practice (did I already mention that?) as much as Kant's Critique of Pure Reason, tries to steer a middle course between absolute principle and pragmatism, treating rights as general principles that are qualified in practice, and can thus evolve over time, with an emphasis on the rule of law as the ultimate guarantor of "common sense" and "balance". The British tradition is a variant on this, with the general principles obscured by the mirage of "traditional rights" that evaporate under scrutiny, and qualifications developed through case law as much as statute. This both entrenches existing privilege, through the conservatism of the legal system, and allows for the flexibility to adapt under pressure without triggering a constitutional crisis.

If history is any guide, the new Bill of Rights will be remarkably similar to the European Convention on Human Rights, and thus the 1998 Act, but with some tacked-on nonsense about mad mullahs not being entitled to NHS treatment and the UK Supreme Court being, well, supreme. In reality, there is little chance of this becoming law, not just because an outright Tory majority in 2015 isn't looking likely, but because the more they big it up as a constitutional moment, the more they risk stimulating popular campaigns for more extensive and radical rights, such as the right to an affordable education or housing. The chief lesson of the Scottish referendum is that if you let the people think they might have a decisive say, you'll only encourage them to get involved. File under guff.

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