Natasa Mavronicola

30 November 2015

The Conservative party has repeatedly made public that it plans to alter the domestic legal regime governing individuals’ rights against the State, and these plans have intermittently appeared in more concrete form in published or leaked documents (see, for instance, ‘Protecting Human Rights in the UK’ from October 2014). The precise contours of the changes being proposed by the now sole governing party in Westminster are still unknown, but we know in broad terms that they are looking to replace the Human Rights Act 1998, which transposed the European Convention on Human Rights into domestic law, with a ‘British’ Bill of Rights (the implications of this nomenclature for Northern Ireland are unknown, and the potential scrapping of the Human Rights Act is particularly controversial in light of the Good Friday Agreement). Before the new Conservative plans crystallise and enter the public domain, I wish to highlight a somewhat underplayed aspect of what is at stake.

The most recently leaked ‘proposals’ (in the Sunday Times on 8 November, and behind a paywall) comprise largely nebulous statements but indicate that a consultation document will be published in the next month. For now, there are suggestions that, under the new Bill of Rights, domestic courts will be encouraged to reference judgments from other Commonwealth jurisdictions (such as Canada and Australia) over and above judgments of the European Court of Human Rights in Strasbourg on cases to do with rights; that rights will not apply to actions of the armed forces overseas; and that there will be limited remedies against ‘public services’ such as the NHS and prison services. (They also include the dubious suggestion that parliamentary sovereignty will be enshrined explicitly in statute.)

There are various well-grounded legal objections to be made to these proposals, their clarity, their foundations and efficacy (and many have been made to previous proposals – see Carl Gardner’s commentary, for example). Moreover, several campaigns are being fought to highlight what we stand to lose in any potential dilution of the rights we are able to enforce under the Human Rights Act 1998 (see, for example, the campaign Act for the Act as well as the Rights Info project).

Nonetheless, the crux of the moral battleground is often elided in the current debate. The key object of attack, underpinning accusations of judicial overreach and Eurosceptic attacks on Strasbourg judgments which inconvenience the UK government or upset sections of the public or make David Cameron physically ill, grievances against the alleged human rights ‘victim culture’, and suggestions that the Human Rights Act is a ‘charter for criminals and parasites’, all of which inform the Conservatives’ plans, is the human in human rights. The changes being proposed, with a British Bill of Rights at their centre, are both symbolically and – I believe – concretely pursued in the vein of severing the ‘human’ from the individual rights that we can claim in UK courts. A piece by Merris Amos from May 2015 exposes the fact that Conservative plans on human rights predominantly revolve around limiting rights for certain (unpopular) groups (and addresses it, in part, through a ‘slippery slope’ argument).

The target of attacks on the Strasbourg Court is an array of judgments from the Court which are strongly objected to by the Conservatives – and by some segments of the UK media and populace. Although the right to private and family life (Article 8 of the ECHR) is cited as a key target of attack, alongside the prisoners’ right to vote judgments, the focus of attack is often the right not to be subjected to torture or inhuman or degrading treatment or punishment (Article 3 of the ECHR), an absolute right against attacks on human dignity, which also gives rise to a duty not to expel individuals to States where they face a real risk of torture or similar ill-treatment (eg Chahal v UK; Hirsi Jamaa v Italy); a duty to provide psychiatric care to prevent the degradation of mentally ill persons in custody (eg MS v UK; Keenan v UK); and a duty to give prisoners on whole life sentences a concrete hope (though not a guarantee) of release (Vinter v UK; Trabelsi v Belgium). Arguments that these judgments go far beyond the rights envisaged by the Convention’s drafters in 1950 are frequently deployed against these cases, recently by Professor John Finnis. (It would be interesting – and of course highly problematic – if such arguments were extended to judgments which recognised the right not to be prosecuted for engaging in homosexual intercourse, or key rights of access to justice, or the right not to be subjected to corporal punishment for the commission of criminal offences.) Yet in reality, criticisms often boil down to the undesirability of such judgments’ implications in according protection to the unpopular or (perceived to be) undeserving among us.

Aside from seeking to dilute the force of Strasbourg’s pronouncements on human rights in the domestic context, the Conservative party has clarified that it seeks to weaken the rights of certain groups, including through restricting the substantive obligations concerning expulsion to face torture and other ill-treatment in its ‘Protecting Human Rights in the UK’ document. The notion that European Court of Human Rights’ and some domestic judgments protect ‘criminals and parasites’ is therefore not far from being translated into a new legal regime which makes such fundamental human rights as the right not to be tortured or treated in an inhuman or degrading manner subject to exceptions (say, for terrorist suspects), or conditional on good behaviour or even on UK citizenship.

Campaigns which defend the Human Rights Act on the basis of largely law-abiding, relateable-to-the-average-voter UK citizens benefiting from it (and standing to lose from its repeal), or which explain that the Strasbourg Court does not in fact have decisive say over UK domestic law and policy under the Human Rights Act, or which downplay the substantive reach of some of the most unpopular of the Strasbourg Court’s judgments, may be playing a significant part in swaying popular support for the Act or – at least – assuaging some misplaced fears and attacks on the Act. But they fail to defend human rights at their most controversial – and, indeed, their most essential: in protecting the unpopular, the marginalised, the otherwise politically, legally and/or socially disenfranchised. That is the essence of the human in human rights, and it is what we may well stand to lose here in the UK.

The next time a person which the majority or a vocal section of the population find unpalatable or undeserving vindicates her human rights, the same attacks on human rights as fostering criminals and parasites will inevitably ensue, and the human rights community will still not have answered them adequately. And, if the Conservatives’ proposals materialise into a Bill of Rights (and Responsibilities?) which actually limits the rights of precisely those marginalised, disenfranchised persons – such as prisoners, terrorist suspects, immigrants and asylum-seekers, persons caught in UK warfare, homeless persons, and others – the cost for human rights in the UK and beyond will be all too real. The challenge therefore is to touch the public’s human conscience in a way which captures the unconditional essence of human rights: that they prohibit wrongs which strike at our mutual humanity, and that they pertain to us simply as human beings and not as responsible British citizens or a variation thereof.

Dr. Natasa Mavronicola is a Lecturer in Law at Queen's University Belfast. She tweets @NMavronicola