In March last year, Dominic Cummings, former Campaign Director of Vote Leave, warned that after Brexit happens “we’ll be coming for the ECHR… and we’ll win that by more than 52-48…” For anyone who has paid attention to the public debate over the Human Rights Act (HRA) and European Convention on Human Rights (ECHR) in the past decade, those were chilling words.
The safeguards we rely on to protect our human rights, here in the UK and across Europe, are not guaranteed for all time. They have emerged from a supreme effort of political inspiration, will and cooperation over the past seven decades. But they can swiftly be undone. In the post-Brexit world, it is only a matter of time before “sorting out” human rights is back on the agenda.
And the starting gun has just been fired, through Jonathan Sumption’s Reith Lectures. Two titles give the flavour: “Law’s Expanding Empire” and “Human rights and wrongs.” Sumption is a former-ish Supreme Court Justice (he has retired as a full-time judge but still sits on some cases). When his lectures were announced, it was obvious to those who have followed his previous statements that he would use them as a vehicle to present a highly sceptical view of human rights. And so he has.
Sumption is hardly the first high-profile figure to argue that the human rights have gone too far. But, regrettably, the whole debate has become riddled with confusion. It is worth spelling out just where the discussion is going wrong—and just how vital these fundamental protections are to British citizens.
To recap, the ECHR is an international treaty which the UK signed in 1951. It contains a list of the basic political and civil rights which we all need to live a dignified life; the right not to be tortured, to free speech, to private life and so on. The content of the ECHR was heavily influenced by its great proponents, Winston Churchill and David Maxwell-Fyfe, a British prosecutor at Nuremberg and Tory home secretary. They saw the ECHR as a means of infusing post-war continental Europe with liberal values and the rule of law.
Before 2000, if a UK citizen was having their rights under the ECHR breached by the state, they had to bring a claim at the European Court of Human Rights in Strasbourg, a costly process which could take years. From 2000, the Human Rights Act (HRA) made it so that public authorities in the UK had to uphold those same rights, and if they didn’t then a person could bring a claim in a local UK court. New Labour sold the HRA as a means of “bringing rights home,” and that is what it did. The ECHR and HRA are in a sense bound together. The former still plays an important role, as its court applies the same principles across a hugely diverse continent, providing guidance and inspiration to UK judges. Given its scope, it is a remarkable system which on the whole works for the 47 states and over 800m people protected by it. Sumption stops short of demanding we undo all this immediately, and would clearly not seek to eradicate every human right protected by the ECHR. But he is alarmingly open to the possibility of the UK discarding the ECHR framework in the future.
There have always been human rights sceptics. Opinion research has long shown that whilst the British public strongly support the idea of human rights and the rights contained in the ECHR, some are concerned about the laws by which they can access those rights. This situation, relatively unique worldwide (people tend to support the protection of their basic rights against the overreaching state), is rooted in our popular mistrust of “Europe” and the unpopularity of "New Labour’s" HRA in the right-wing press.
I was heavily involved in the human rights debate before Brexit was a thing and there are many common features between how people feel about the EU and the ECHR. Like the EU, the ECHR is a system of international cooperation originating from a treaty, enforced by an international court which gets a lot of public criticism, not all of it fair. And confusion between the EU and the ECHR is common. Indeed, as Cummings rightly points out, “most people probably think we’re already leaving [the ECHR] because of the 2016 referendum.”
But rather than address this confusion, seeing that human rights scepticism is a popular position, amplified by the right wing press, the Tories fought for a decade to replace the HRA with a “British Bill of Rights.” The campaign, driven by current leadership hopeful Dominic Raab, has been, to now, a total failure. The HRA remains in the same form it was passed into law over two decades ago and the UK is still a signatory to the ECHR. Meanwhile, our courts have continued to apply human rights laws to the benefit of citizens, particularly underrepresented minority groups who tend to get left behind by majoritarian political systems. Despite this, demands for repeal persist from some quarters.
The problem for the Tories has always been that the case against both the ECHR and HRA has tended to rely upon scare stories and exaggerations, such as Theresa May’s famous cat which she claimed, and she was making this up, prevented a man being deported. I have referred to this as the “monstering of human rights.” Every time these empty vessels crash against the sharp rocks of reality, they flounder. The most recent example was following the 2015 general election, where a relatively small group of “Runnymede Tories” blocked any prospect of HRA repeal. The critics of human rights have not waved the white flag yet though. The debate was just put on hold until after Brexit.
Some criticisms of human rights law are valid—in part. But it is important that human rights laws and institutions are not subjected to a standard of perfection. Any system which relies on broadly defined rights and a court comprised of human judges interpreting them will be imperfect. Nevertheless, the criticisms of the European Court of Human Rights and the HRA are overblown, which is why they so often seem to be premised on fundamental misunderstandings. For example, Jenni Russell’s recent Times article, responding to Sumption’s lecture and overtly seeking to apply the language of “take back control” to human rights, repeated the myth that the HRA allows judges to strike down all laws. It doesn’t. It is a clever compromise designed for our system of parliamentary sovereignty whereby judges can declare a statute to be incompatible but, in legal terms, leave that statute in place. This allows parliament—not the courts—to decide whether to change it or not.
Another regular criticism is that the ECHR has been taken too far, with judges discovering new rights which were never written into the text of the Convention—this is Sumption’s thesis. It echoes the US-style “originalist” argument; that we should interpret the text as the people who wrote it, in this case in the early 1950s, would have. But the reality is that the court has moved slowly, responding conservatively to social changes not just in individual states but across the whole of Europe. For example, over decades it has gradually recognised the rights of homosexuals, not explicitly protected—for obvious reasons—by the 1950s text. In the UK context, this led to the decriminalisation of homosexuality across the entire British Isles and a ruling that homosexuals must be permitted to serve in the Armed Forces. And in recent years the Court has slowed down even more, as the principle of “subsidiarity” has been developed by influential states, such as the UK, which have pushed back against what are seen as its excesses. The UK government, far from being a passive victim to crafty judges as Sumption implies, has been deeply involved in the Court’s evolution through involvement in cases and the democractic reform processes. And the court has responded by taking an even more conservative approach.
Here in the UK, in less than 20 years since the HRA came into force, judges have used it to fill essential gaps in protections, in areas as diverse as inquests, social security benefits, religious rights and freedom of the press. But the handful of cases which have become totemic for human rights sceptics are a testament to how small-minded our nation has become. Compare the great ambition of Churchill to spread values of tolerance and decency across a European continent morally ravaged by fascism and communism to human rights critics’ current obsession with giving a few of our prisoners the chance to participate in democracy and the deportation of a hate preacher, Abu Qatada, who in the popular imagination remains here in the UK instead of Jordan—where he ultimately returned with his human rights intact. If the UK were to withdraw its historic support for the ECHR, it would undermine a system which is strengthening liberal values across Europe, including the former USSR. It would be an act of epic historical selfishness.
Brexit still dominates the national conversation but, as Cummings said, it is only a matter of time before they will be coming for human rights. This will happen either because Brexit has failed, so angry Brexiteers need to be assuaged, or it succeeds, giving confidence to those who want the UK to be further internationally isolated. In many ways, the attempts to answer the concerns of human rights sceptics mirrors the Brexit debate. Overblown criticisms are useful for stoking anger or rallying a political base but cannot ever truly be answered. Just as parliament cannot identity, let alone agree, a Brexit deal which will satisfy critics of the EU, it will not find a way to assuage critics over human rights laws. As many have pointed out, unicorns do not exist.
It is beyond doubt that the debate will soon reignite. It is up to advocates for human rights to learn the lessons of 2016 and ensure that this time the public debate is won.