Dear Roger
9th August 2005
The Human Rights Act—one of New Labour’s great constitutional innovations—is a welcome check on the “democratic absolutism” of British governments. By entrenching the European convention on human rights in our law, it requires public bodies—schools, prisons, government departments and so on—to uphold basic human rights, such as privacy or the right to a fair trial. This constrains crude majoritarianism, but the act is also designed to preserve most aspects of parliamentary sovereignty. A judge can declare an existing law incompatible with the Human Rights Act (HRA), and it is then left to parliament to change the law; but if parliament decides not to it may find itself before the European court of human rights in Strasbourg.
So the principle is sound enough. But as the government now seeks to combat religious extremism and terrorism with new laws, two aspects of the act—and indeed the wider human rights movement—give me cause for concern. The first is the transnational character of the act. The HRA requires public authorities to respect the human rights of all individuals in Britain, whether British citizens, those temporarily here or even those illegally here. For this reason, the government may find it difficult to deport foreign clerics even if they incite terrorism. (It has been unable, for example, to return to Afghanistan those involved in the dramatic hijacking of a plane to Stansted in 2000.)
This requirement to give non-citizens many of the legal protections of citizens in today’s conditions of global migration and cross-national terrorism is untenable. Furthermore, it seems to be connected to a wider fallacy about the origin and nature of rights. People are not born with rights, and, regrettably, many of the world’s 6bn people have few or none. Rights are a social construct, a product of history, of ideas and of institutions. You and I have rights not as human beings, but mainly because we belong to the political and national community called the United Kingdom, with its infrastructure of laws and institutions.
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