Helping to Keep Everyone in the UK Safe and Free

What is the ECHR really for?

[T]he droits de l’homme as distinct from the droits du citoyen, are nothing but the rights of egotistic man, of man separated from other men and from the community.

-Karl Marx

I recieved an interesting email earlier today from the UK-based human rights NGO, Liberty, informing me that there are ‘5 WAYS THE EUROPEAN CONVENTION ON HUMAN RIGHTS MAKES THE UK A BETTER PLACE’.

Clearly, the UK human rights lobby is in a defensive frame of mind. And it is not difficult to understand why. For the first time since 1951, UK Cabinet ministers and even the Prime Minister are starting to talk semi-seriously (though only semi-seriously) about ‘leaving’ the ECHR, and there is a wider mood of scepticism settling across the European continent, chiefly as a result of the European Court of Human Rights’ recent ‘right to protection from the effects of climate change’ ruling. Liberty obviously senses that there is a need for human rights advocates to come out swinging, and hence the email (although it is actually a rehash of an article it put out in the middle of last year).

The email, like Liberty itself, is easily lampooned; everything the organisation produces is permeated by a deep po-facedness and pomposity that makes it very difficult to take seriously. But the document is worth dissecting in some detail, because doing so reveals to us the extent to which contemporary human rights practice has come to resemble a sort of reflexive kitsch which does nothing to challenge establishment mores and indeed serves largely to reinforce the prejudices and nest-feathering tendencies of the governing classes. Indeed, the email actually ends up doing precisely the opposite of what it is intended to do, and makes a pretty good case as to why extensively reworking, and perhaps even tearing up, the ECHR may be the only realistic option for the mature, rule of law-respecting democracies which most of the nations of Europe purport to be.

To deal, then, with the most immediate point first: with one qualified exception (the importance of the ECHR within the Good Friday Agreement that brought peace to Northern Ireland), the ‘five ways’ in which the ECHR is purported by Liberty to make the country better are founded on a myth. It is an important myth, because it informs much of the current discourse about human rights in the UK, but it is nonetheless almost completely false. It hinges on what I increasingly call, in my own head, HarperLeeism: the notion, very widespread among lawyers in general but human rights lawyers in particular, that their duty is not to engage in anything so mundane as providing legal advice to clients or advocating for their interests in return for cash, but doing justice in some deeper and more Important, with a capital ‘I’, sense. They are not just guns for hire dispensing practical wisdom. They are champions of causes. They right wrongs. They hold the state to account.

It is difficult to explain to the layperson just how integral this notion is to human rights lawyers in the UK, who have all to a man and woman imbibed the great American corpus of cases from the civil rights era (Brown v Board of Education; Miranda v Arizona, Loving v Virginia, Roe v Wade, etc.), deeply regret that they could never be involved in any cause half as romantic or morally justified, and all as a consequence have pivoted to the faintly ludicrous project of reimagining the history of law in the UK as having followed a similar trajectory. The idea here is that prior to the UK’s accession to the ECHR in 1951, and really before the enactment of the Human Rights Act 1998 (HRA), which enshrined the ECHR rights in UK law, the country was a benighted, oppressive backwater in which the population was squashed beneath the heel of a vile oligarchy against whose excesses they had no legal defence at all. But then human rights law - and human rights lawyers, obviously - rode to the rescue, and ushered in a new, rights-respecting era in which for the first time ‘everyone is treated with dignity and respect’.

Hence, as Liberty puts it in its ‘Five Ways’ document, when the ECHR came into effect in 1953 it ‘guarantee[d] everyone’s rights in law for the first time’; it ‘protects us from things like torture, unlawful killing and slavery’; it ‘guarantees our freedom of speech, assembly, religion, privacy and much more’; it ‘forces public authorities – like government departments, local councils, the police and hospitals – to put measures in place to respect…rights’; it ‘help[s] keep everyone in the UK safe and free’. Without it, the implication goes, there would be a retrenchment - it would be back to the bad old days when rights violations were widespread and nobody was ever able to ‘challenge [public authorities] in British courts’.

This is all profoundly wrong, for three sets of reasons.

First, it is wrong historically. Almost all of the things that Liberty suggests the ECHR does (‘protecting us from things like torture, unlawful killing and slavery’ and ‘guarantee[ing] our freedom of speech, assembly, religion, privacy and much more’) were done through common law and statute long before the ECHR’s existence, and certainly long before the enactment of the HRA in 1998. We just didn’t generally use the language of ‘human rights’ to describe what was going on. In fact, back in 2022, as part of the now-defunct Bill of Rights exercise, the Ministry of Justice compiled an interesting if at times misleading list of legislation and case law precisely in order to show that all of the things which the HRA supposedly ‘brought into’ UK law were either there already, or were perfectly capable of being realised through standalone statutes subsequent to its enactment. For example: slavery was abolished in 1833; the original Bill of Rights prohibited cruel and unusual punishments in 1689; freedom of speech was always untramelled save where restricted explicitly by common law or statute; citizens could always sue the police for the tort of false imprisonment; discrimination was prohibited by various statutes later conjoined into the Equality Act 2010, and so on.

Second, it is wrong constitutionally. The idea that the ECHR (as given effect through the HRA 1998) is a necessary element within the UK’s constitutional arrangements is a phantasm; in the UK constitution, Parliament is sovereign, and therefore it can legislate anything it wants to. It can, through legislation, create a right for every member of the population to have a jar of lime marmalade delivered to their door each day for breakfast, and it can, through legislation, abrogate any right contained in the ECHR that it wishes to. What protects human rights within the UK constitution is, therefore, not our legal arrangements, but rather our political ones: it is not the law’s, or the judiciary’s, but Parliament’s ongoing commitment to a particular vision of society that guards the values which human rights law purportedly enshrine - and this, of course, reflects the commitments of the generations of UK electorates who have elected those Parliaments. Human rights law does not constrain politics; our political arrangements make human rights law possible. (And, of course, the converse also holds true: if politics dictates that human rights must give way, they will do so. Nobody who thinks that human rights law acts as a genuine constraint on political will can be taken remotely seriously after the events of 2020 and 2021, when human rights law was flung out of the window without a moment’s hesitation, and without a whisper of complaint from the human rights lobby, in the name of considerations of policy.)

And third, it is wrong on its face. Take a look around you (you don’t have to live in the UK to play this trick, of course): does it strike you that you live in a country in which ‘freedom of speech, assembly, religion, privacy and much more’ are guaranteed? And does it strike you that those freedoms - ‘and much more’ - have been given greater protection since 1998, or less? It strikes me rather that they are becoming ever more contingent, and ever more subject to suspicion. And this is absolutely no accident; it is in part because when the HRA came into effect in the UK, it ushered in the notion that most rights are ‘qualified’ rather than absolute, meaning that that they can be constrained where ‘proportionate’ to the achievement of some legitimate aim of government. The result of this is that rights such as those to freedom of speech or assembly, which were once more or less absolute in the UK except where subject to clear constraint in the form of statutory or common law rules, are now in large part dependent on the whims of judges’ determinations about whether or not interference with the right in question would be legitimate and proportionate. (This is often framed, with respect to freedom of speech, around the rubric of what would be ‘acceptable in a democratic society’ to say - in the eyes, of course, of the judge.)

In summary, then, the idea that human rights law is a body of rules which are necessary to constrain the State, and that the ECHR and its incorporation into UK law by the HRA represented a new era of increased ‘dignity and respect’, is simply not true. What is rather true is that law will tend to follow politics, and indeed will be bent to serve political interests - and human rights law is no different.

What we should be asking ourselves is not, then, how it is that the creation of the ECHR and subsequent enactment of the HRA has ensured that brave human rights defenders like Liberty have been able to deploy human rights law to ‘stand up to power’, as it trumpets on its website in big bold letters, but rather what political interests are being served by the legal arrangements that have sprung up in relation to human rights in the UK, and what those legal arrangements achieve.

Here, it is useful then to step away from Liberty’s ‘Five Ways’ and to its homepage, where one can find an interesting drop-down menu for those who ‘need advice and information’. The substantive topics available for selection are, in total, as follows:

• Benefits

• Coronavirus

• Counter-terrorism

• Data protection

• Disability

• Discrimination

• Family

• Immigration

• Police

• Protest

• Surveillance

These, in other words, are the subjects about which Liberty can be understood to be chiefly concerned. What do you notice about them?

The old Marxian critique of human rights, as I have said before in previous observations about Liberty, has much to recommend it. In essence - I bowdlerise slightly - the traditional Marxian analysis of human rights was that they exist to produce the human subject upon which the economic base of society was predicated. They create the ‘liberal’ subject - free, atomised, self-interested, bourgeois. Another way of putting this is that one would be naive to expect that human rights law would do anything other than buttress the dominant paradigm. And a somewhat debased, but still I think insightful, way of putting it would be that human rights help to sustain and support the set of class arrangements upon which society is constituted.

If this is the case, then what would we expect human rights law in a society like UK in 2024 to come, in effect, to achieve? Well, it would shore up that society’s economic model - and the interests of the dominant class. It would by creating a favourable environment for immigration facilitate the exploitation of cheap labour from the developing world to drive down the prices of consumer goods and services. It would facilitate the provision of benefits to welfare recipients in order to produce a permanently vulnerable client class and stave off (economic or political) revolt. It would expand the workforce, and hence the market, to its furthest extent through an insistence on equality and interoperability between individuals from different groups. It would make it more palatable to engage in market consumption online by emphasising the protection of privacy. It would provide succour to protest movements whose actions reinforce the interests of the dominant class. And so on. Is it not, then, intriguing that Liberty’s list of main topics of interest should correspond so closely to precisely those sets of concerns? And is it not noticeable that whenever human rights law pops up into public consciousness in the UK, it is invariably to do with immigration, the benefit system, equality, privacy, or the rights of protestors?

Human rights law in general, then, and the HRA in particular (and, importantly, the way it has been interpreted by judges and the public bodies charged with implementing its provisions) could more fairly be described not as ‘standing up to power’, but rather as supporting power and furthering its interests. It not a body of law which ‘holds the state to account’, but rather one which facilitates the creation of an entire governing framework on which a particular iteration of the state rests.

Sensible politicians have to grapple with this. In a previous post, I suggested that ‘leaving’ the ECHR was at this stage impossible for the UK. It is indeed so. This this does not mean that nothing should be done. But it does mean that if anything is to be done, it has to be part of a much wider project through which the entire framework of government is reconstituted. That is the only way to ensure that reform will stick, and that human rights law serves to buttress a set of political arrangements which are more genuinely amenable to securing ‘dignity and respect’ in terms which an ordinary person would understand. None of us should hold our breaths for that - but nothing else will really do.