Basic freedoms are being lost in the human rights circusSimon Jenkins
Bentham was correct. There are no fundamental human rights. The concept, said the great utilitarian, is nonsense on stilts. It induces tendentiousness, large legal fees, and possibly war. Last week saw Britain engulfed in a Halloween of human rights. Bishops in cassocks and counsel in wigs were flying in and out of parliament, courts and broadcasting studios like Harry Potters on broomsticks. Afghan hijackers and ranting mullahs had a human right not to be deported. A Nigerian visitor had a human right to a National Health Service heart transplant. A released killer had a human right not to have his parole terms enforced. The dying had a human right to euthanasia and the living a human right to reject a cancer-carrying embryo.
As Bentham said, there are reasons for wishing there were such things as rights, but that does not mean that such rights exist. Hunger is not bread.
There may be rights under contract, rights tied to obligations, matrimonial rights and rights ordained by statute. There are principles of human dignity and respect that should guide such statutes. We should observe compassion in all things. As the Bible says, Do unto others as you would have them do unto you. But you may read as many tomes on human rights as you like and (with your brain slowly fried) you will find yourself back with nonsense on stilts.
From the moment this government decided to incorporate the European convention on human rights into British law under the 1998 Human Rights Act (HRA) there were two racing certainties. One was that the government would be the main offender under the law and the other was that Tony Blair would wish he had never signed it. He has already said he may well reform it if it impedes his terrorism legislation.
Liam Byrne, a government minister, admitted last week that the government was seeking a new balance between its own discretion and what was implied by the act. This is despite the act being largely declamatory. It can be overridden by parliament, with judges merely declaring any new law incompatible with the HRA. Ministers can go on doing what they like if parliament supplies them with a majority.
The case of the Afghan hijackers is to the point. In 2000 these nine men hijacked a plane full of fellow nationals and flew it to London. They and 50 others on the plane claimed asylum and were allowed to stay since deportation would have meant certain death. This decision was bizarrely reinforced in 2003 and 2004 despite Afghanistan by then having been liberated by British and other forces. The hijackers have since been allowed to live rent-free on benefits in London, incurring some #20m in various costs.
Last week Mr Justice Sullivan, a High Court judge, reasserted this decision, not because it was right but because the governments refusal to fully implement it was wrong. He was scathing of three home secretaries in denying the hijackers proper asylum, including freedom to move about and earn a living. Blair in reply said that the failure to deport was an abuse of common sense. But all the case served to do was give human rights a bad name and invite ministers to pass a new law.
Last week Lord Goldsmith, the attorney-general, called the act one of the greatest achievements of this Labour government. He was commenting on what proved a tragically wrong decision by the Parole Board to weaken the terms of release of a dangerous killer who went on to commit another murder.
The board said it was nervous of judicial review if it denied his claimed human right to greater freedom under parole. As in many such cases, a quasi-judicial panels professional judgment was polluted by outside pressures: a horror of media attack if it let someone out and a horror of the astronomical cost of human rights litigation if it did not do so. The panel may have been using human rights to excuse its incompetence, but such considerations should not have been an issue.
Indeed, Goldsmiths trumpeting of the HRA is hypocrisy when contrasted with his dismay at the Afghan hijack ruling, his support for military action in Iraq, his acceptance of asymmetrical deportation to America and his fight to stop the Diego Garcians from regaining land stolen from them by the British in 1973. To him as to the prime minister, human rights were fine for the manifesto but a pain in the neck in practice.
Penal reformers are now appealing to human rights as a generalised weapon in what should be a more specific battle against bad laws, mostly introduced by Labour home secretaries. Lawyers are exploiting the procedures of asylum boards, parole boards and employment tribunals to assert what amounts to a human right to disagree with any adverse decision taken by a minister or his agents.
Rights are cited against sexual harassment, personal offence, noisy neighbours, landscape views and the wheelchair navigation of a spiral staircase. It was said that the 1998 act could not fall foul of ridicule because judges would see that common sense prevailed. They have not done so. A tribunal actually bothered to hear, at public expense, a teacher claiming that a farting chair infringed her human right to avoid embarrassment. A silly law is an invitation to silliness.
Whether or not foreigners who break British laws should be sent home should not be a matter of human rights, any more than whether prisoners should be released on parole. Such rights will always run up against the conflicting rights of others to be protected from them, rights usually as interpreted in a tabloid headline or a political soundbite.
Not a week passes without the human rights of the majority being asserted not in defence of some personal freedom but against it. Decisions on prisoner release should turn on testing personal freedom against a threat to the wider community. That is a matter not of rights but of risks.
There is no limit to the abuse of rights. In Fridays Lords debate on euthanasia rights were variously cited to express something seen as inherent (the right to life) and something granted to people by the state (the right to euthanasia). The incantation of rights was a distraction, a philosophical adornment to prop up a case, mostly expressed by peers in terms of personal anecdote, the worst basis for legislation.
It was like the proclaimed rights of animals against vivisection or consumers against genetically modified food. They are cited to give an absolutist ring to a ragbag of group interests, anti-scientific crusades and general pleas for respect (as of animals).
Liberals may welcome the greater respect for human dignity, personal choice and individual freedom enshrined in much modern legislation. But these are values, guiding principles, not legal entitlements. Ronald Dworkin, the philosopher, asserted that entrenched rights are the individuals best defence against majority tyranny. He declared that constitutional law can make no genuine advance until it isolates the problem of rights against the state and makes that problem part of its agenda.
But human rights tend to be mere platitudes unless expressed as concrete liberties, preferably in a written constitution. In Britain they have not informed legislative debate, but occasioned a parade of nuisance litigation and law and order laws, each one designed by ministers to be HRA-proof.
Last weeks arguments over deportation, asylum, parole, euthanasia and embryo screening have seen genuine clashes of opinion and belief. They have concerned the political balance between individual and collective freedom. They have weighed the civilised treatment of persons against the wider security of the community. They have been good debates, but I cannot see that they have been improved by the presence of human rights legislation.
Time and again a concern not for justice or a balance of risk but for someones human rights has distorted argument and corrupted decision. Meanwhile, the HRA has led the right to think that Britain has become a liberal mayhem. It is a red rag to the tabloid bull.
The act may have yielded some good in enabling the courts briefly to embarrass ministers. In the absence of more formal checks on the executive any stick, not least a judicial one, must be considered better than none. But it remains a check that is based on a nonsense. I always thought the 1998 act would do more harm than good. It has not made Britain more free but less so.
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