It is only to be expected that the Conservative manifesto pledge to review the Human Rights Act should provoke a liberal moral panic. Floating in the empyrean, human rights are supposed to transcend mundane political divisions. Without a judiciary with the authority to override political decisions, there is no freedom or justice for individuals or minorities. Any attempt to curb rights is a prelude to tyranny.
Like much in contemporary liberalism, this response combines high-minded hysteria with ignorance of history. The Human Rights Act became law in 1998 and came into force in 2000. Was the UK a tyranny until then? Power was significantly more accountable. Judgements involving basic political values were not the property of a judicial elite, but made by legislators who could be removed in democratic elections. Attacked by liberals and some Conservatives as a species of “elective dictatorship”, this was in fact a system that secured self-government. There was no Supreme Court standing above government that could nullify its decisions. Political choices among conflicting goals and values were made openly in parliament.
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Only 20 years ago, the British judiciary lacked the capacity, and probably the will, to become seriously involved in politics. Judicial independence was never in doubt. At the same time — and not unrelatedly — the judiciary did not assert the authority to overturn acts of government. It would have been unthinkable for it to pronounce, as the Supreme Court did unanimously in Miller 2, that a decision on proroguing parliament would have “an extreme effect on the fundamentals of our democracy”.
Clearly, this is political language — and of a crude, silly, over-heated kind. Equally clearly, that is not how the judges see it. In their minds, their views on political questions are so self-evidently correct that they are not political views at all. For them, it seems, the fact that politics remains a sphere of irresolvable disagreement shows that collective decisions about basic freedoms are best decided by an elite that is not politically accountable. It is no accident that the dominant strand in liberal thinking over the past generation has been a species of anti-political legalism.
A compelling case can be made for returning to the pre-1998 regime. Whether the Supreme Court is allowed to continue in its present form is not the most important issue. Disestablishing the Court, and returning it to a more limited role as a Lords committee of final appeals, could have a useful symbolic role in curbing judicial overreach. But whether a body with the title of Supreme Court continues to exist is not the real issue. Nor is the central question of how judges are chosen. An American-style system of political nomination should be firmly rejected. The proper remedy for the politicisation of the judiciary cannot be to make the judiciary yet more political. Instead, judges should be deprived of the powers that enable them to make political decisions.
The Conservative manifesto suggests derogations from the HRA where it hobbles government in its most essential tasks. Human rights laws have obstructed the deportation of terrorists and other criminals and limited the terms under which they are sentenced and released, exposed the armed forces to vexatious historic law-suits and dictated the conditions in which prisoners are held in British gaols. Amending the Act to prevent these abuses would be an advance, but would not remove the power of judges to impose unjustified limits on the authority of government. The single most direct route to this end would be by repealing the Human Rights Act, and withdrawing from the European Convention on Human Rights.
It will be pointed out that the ECHR, which the HRA incorporated into UK law, was framed largely by British civil servants. But in the nearly 70 years that have followed since it came into force, the scope of the Convention has expanded greatly, as European judges have interpreted its provisions ever more broadly (Judicial over-reach extends beyond the inflation of rights; the ruling by the Court of Appeal that a third Heathrow runway would be unlawful shows courts acting as arbiters of public policy).
A British Bill of Rights has been proposed as an alternative, but would not necessarily reduce judicial over-reach. Drawing up such a bill would be a protracted process, and with much of the legal profession in thrall to theories that enhance their own standing and scope of operations, the resulting rights would probably be little different from those in force at present. The rule of law would still mean rule by lawyers. If the HRA were repealed, and the UK no longer signed up to the ECHR, the situation would alter fundamentally. Britain would become like Australia, a modern democracy that operates without a national bill of rights.
Liberals will respond with horror to any suggestion of returning to the pre-1998 British ancien regime. Yet it secured the values an earlier generation of liberals rightly prized. Homosexuality between men was legalised in 1967, as was abortion except in Northern Ireland. (In a civilized reform, same-sex marriage became lawful in England and Wales in 2013, and Scotland a year later. Extending the benefits of marriage, it widens the good life available to gay people. Human rights are irrelevant.) The Race Relations Act making it illegal to refuse housing, jobs or public services to people on the basis of their ethnic origins, was passed in 1968. In all these cases, liberal values were secured by legislation, not the judicial adjudication of rights.
Relying on parliament rather than the judiciary for our freedoms is a distinctively British liberal tradition. John Stuart Mill never supposed human freedom could be embodied in a list of rights. Having himself served as an MP, he assigned to legislators the task of determining the scope and limits of freedom. Parliamentarians, not a jumped-up collection of lawyers, was supreme. Legislators should ask whether harm to others is at issue, and if so, which mix of freedom and restraint would best promote general well-being. Unlike basic rights, liberties could would vary widely according to changing circumstances.
There is much that is wanting in Mill’s utilitarianism, not least his assumption that harm and well-being can be assessed in easily agreed terms. But Mill’s account of how questions of freedom are to be decided has crucial advantages over the rights-based legalism that has effectively replaced it as the official philosophy of the British governing classes. Mill recognised that vital freedoms may conflict with one another, and when they do, the conflict should be settled by elected law-makers not judges.
The decline of this British liberal tradition began well before the passing of the Human Rights Act. Writing in 1990, I noted:
“If there is a single characteristic that typifies liberal political philosophy over the past quarter of a century, it is its domination by a jurisprudential paradigm…It has generated a series of intractable conflicts, which portend deepening division, growing ungovernability and even a sort of chronic, low-intensity civil war…of these conflicts the abortion question is only the most obvious, but it serves well enough to illustrate the fateful implications for political practice of the hegemony of a rights-based jurisprudence that has been inflated by the inordinate claims of liberal theorizing—that, since fundamental rights cannot be moderated, their judicial interpretation can only mean unconditional victory or complete surrender for the protagonists in the dispute. This is not a recipe for civic peace, or for a stable liberal civil society.”1
A diagnosis that may have seemed hyperbolic 30 years ago may look less so today. The effect of turning practically every major public issue into a question of human rights is to make conflicts of values intractable. The abortion issue was only the beginning of a culture war that has left American politics hopelessly polarised. Britain has followed America down a road that leads to a war of all against all, fought out between contending social groups armed with inordinate rights.
Contrary to the legalist philosophy that has shaped liberal thinking over the past 30 or more years, human freedoms are not a system of dovetailing rights. Protecting often divergent human interests, they are the site of unending value-conflict. A failure to recognise this fact has created the hyper-liberalism that now attempts to impose on society a particular set of values that much of the population does not accept.
Like human identities, rights are not unilateral acts of self-assertion. In order to be enforced, they need recognition in society, which is particularly problematic when one right collides with another. The right to free speech is at odds with the right to be protected against hate speech, the right to stage protest marches with the rights of people to go about their daily business, the rights of transgender people with those of people who demand single-sex facilities, and so on.
Liberal legalists say warring rights can be moderated, and their conflicts resolved, by judicial process. But the conceptions of public interest and social wellbeing to which judges appeal in order to revolve these conflicts are not themselves matters of legal judgement. They are inherently and unalterably political, and the political opinions of judges have no more authority or value than anyone else’s.
The legalist philosophy in which rights insulate freedom from the hazards of politics is an illusion. All the majestic panoply of the American constitution will not stop Trump turning America into an illiberal democracy if — in a scenario the time-wasting fiasco of impeachment has made more likely — he wins a second term.
In Britain, liberals often ask what life would be like under a Corbyn government without the HRA. The answer is that it would be not much different from life in Britain with the HRA. When it suited his purposes, Corbyn would ignore, override or circumvent human rights, as he has done in regard to the investigation of Labour anti-Semitism. It was not a regime of rights but the moral decency of voters that prevented an institutionally racist party coming to power in this country. In contrast, the European rights regime has not stopped far right parties advancing to the point where they have entered government in several countries. Human rights have no magical power to shield freedom from political challenge and defeat.
If the government is serious about reviewing the position of human rights laws in this country, it should not be put off by hysterical claims of a slide into despotism. Inspired by legalist ideologies that are at variance with the British political tradition, the regime of rights that has been imposed over the past two decades need not be accepted as permanent. Clinging to a faddish orthodoxy is not the most authentic kind of conservatism, or the most effective way of protecting freedom.