Human rights are not perfect, but we should defend them against this onslaught.
Political scientist Wendy Brown, quoting Gayatri Spivak, calls human rights ‘that which we cannot not want’. Spivak’s formulation is reminiscent of the late Lord Bingham’s rhetorical question: ‘Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary?’ Or Liberty’s simpler formulation: What’s not to love?
Brown goes on to say that Spivak calls human rights ‘that which we cannot not want’ in the context of knowing their limitations, in the context of knowing what ‘hidden cruelties’ and ‘unemancipatory relations of power’ are concealed within liberalism’s ‘sunny formulations of freedom and equality’. She gives a carefully articulated account of the paradoxes and limitations of human rights law as a tool of emancipation for subjugated groups. Ben Golder also explores the ‘limits and possibilities’ of human rights through the writings of Foucault and others (see, for example, this great lecture or this paper; and I just found another great free paper on this topic by Souter). I hope I’m not butchering their carefully formulated arguments when I summarise them thus: the problem with human rights is that they attenuate, soften, and tinker round the edges of the problems of inequality and oppression in our society, but they do not rupture the status quo to affect the structural background to these concerns.
In short, human rights are not an instrument of radical emancipation, they just (potentially) make things a bit less bad. And they will tend to do so in a way that disproportionately benefits more powerful groups, who have increased access to justice to exercise their rights. Nothing infuriates me more than human rights proponents who fail to see the connection between LASPO and human rights. And human rights, like all legal tools, will tend to be interpreted in ways confluent with hegemonic discourses and norms. This is problematic because discourses are part of the machinery of oppression (think of Mostyn J's comments about a 17 year old with learning disabilities in Re RK, ‘I am not sure that the notion of autonomy is meaningful for a person in RK’s position’). The rights (Convention or otherwise) of different groups can come into conflict, and often – but not always – the powerful will be in a better position to argue their case, to reveal the ways in which the state itself is invested in upholding their rights over those of society’s outsiders (for example, the rights to property and profit of care providers in conflict with the rights of Mrs YL). And of course, important claims that could hold states to account can be more easily bought off if they are brought by the poor, stemming the need to take remedial action for others in similar situations.
Furthermore, human rights can be double edged. Positive obligations to protect against loss of life (Article 2 ECHR) or inhuman and degrading treatment (Article 3 ECHR) can come into tension with rights to privacy, liberty and autonomy (think of how the case of Savage v South Essex Partnership NHS Trust (2008) might make hospitals more wary of granting leave to detained patients; or how the duty to safeguard children from abuse will impact upon the privacy of families in general). These tensions are not easily resolved; a further point made by Brown is that legal scholars and campaigners tend to 'specialise' in the rights of a particular group, and consequently fail to address the ways in which their rights may be pitted against those of others. A good example from my research is how the rights of carers and families can sometimes come into conflict with the rights of disabled people - a point that few feminist or disability rights scholars have addressed (bar the honourable exception of Tom Shakespeare, and see also this great paper by Jane Campbell - HT to Neil Crowther for that).
Even in purely legal terms, human rights instruments can be somewhat unsatisfactory because of their unpredictability and lack of specificity, making them dangerously arbitrary and hard to apply by judges, and also for those in the public sector meant to embed human rights values into their work (or perhaps that’s just Article 5?). Certainly I increasingly think that whilst human rights were vital to drawing attention to issues of liberty of the person in social care, being hitched to the meaning of Article 5 may yet be the downfall of the deprivation of liberty safeguards. For those wanting to further the cause of marginalised groups, human rights can be fickle friends. But, in times of need, when you have no other resources or weapons at your disposal, a fickle friend is better than none at all.
And that is why, despite having reservations about the potential of human rights law to remedy societal ills, and despite being somewhat wary of forms of human rights evangelism that doesn’t take into account issues around power, interpretation and access to justice, I have been horrified and a little heartbroken at the persistent and increasingly pervasive reputational attack on human rights in public discourse, which seems to have reached fever pitch this week. For the first time I have started to believe it might be possible that the UK could withdraw from the European Convention on Human Rights. That it might be possible that the repeal of the Human Rights Act 1998 and replacement with a Bill of Rights isn’t just a cosmetic alteration (I love Adam Wagner’s ‘new Ford Fiesta’ analogy), but actually leading to a weakening of domestic human rights machinery.
Because what Cameron and his colleagues are attempting to do is not to remedy the problems with human rights instruments outlined by critical legal scholars, is not even to attempt to remedy the problems of unpredictability and uncertainty that may plague the legal profession and public sector. It is to dismantle the architecture that makes human rights have some concrete value in the UK rather than being a cosmetic, vague, whimsical and unenforceable set of statements; 'brochure values' if you like. The Conservative party have been careful not to position themselves against human rights: ‘a Conservative government will always speak up for freedom and human rights’ (2010 manifesto, p109). To position themselves against human rights would be to position themselves against the grain of the national and global political imagination – to admit to being ok with a bit of torture, a bit of arbitrary detention, a bit of snooping in your private affairs. If they did straightforwardly position themselves against human rights it would be much easier, in many ways, for dedicated human rights campaigners to puncture their rhetoric. No, what Cameron and his colleagues are saying is much more sinister: I want to retain the rhetoric, the legitimising veil, the glamour of human rights – but I want to dismantle the only means that private citizens have to call me to account on what I say.
As that architect of liberal thought, Jeremy Bentham once said - unenforceable human rights are ‘nonsense upon stilts’. They are a circus act: they can intrigue, inspire, command attention – these things have value, but they are neither sword nor shield. Although many would prefer the broader and more generous principles outlined in the Universal Declaration of Human Rights to the drier and more traditional liberal values of the European Convention on Human Rights, it is the Convention that is truly innovative because of its mechanism. It is a mechanism that allows individuals to hold governments to account, to appeal to a court that is divested of the interests of the state, a non-parochial court whose judges may bring to bear a broader range of perspectives and political experiences on their rulings. Sometimes, yes, this can be problematic - where there are misunderstandings of the social and legal context of a particular concern. But equally it seems possible that a fresh set of eyes may see possibilities for solutions or even dangers that domestic courts did not apprehend. Far from the judges of Russia, Ukraine and Turkey ‘polluting’ the clean liberal waters of the ECtHR, they may bring much needed awareness of the ways in which the rule of law and the values we take for granted can slide into oblivion. As we march towards a global depression paralleling, if not exceeding, that which preceded the Second World War; as we see governments (Hungary?) reviling democratic principles and politicians (Gingrich?) the rule of law, we individual citizens should be very cautious of assuming we can hold our governments to account through elections alone. Do you really think a vote once every five years, between three political parties whose similarities converge on indistinguishability half the time, can exercise any real power over the nuanced and complex human rights issues arising in our courts?
The foot-stamping articulations of the ‘margin of appreciation’ in recent times strike me as little more than sour grapes and nationalism. There is much of value in the idea of subsidiarity, and I would welcome reasoned discussion of what issues are and are not appropriate fodder for the ECtHR. But as far as I can see no prominent politician or commentator banging the ‘margin of appreciation’ drum recently has put forward any sensible legal or political principles that make it clear where subsidiarity lies, which issues should be dealt with at a national level. Why is prisoners voting a ‘subsidiarity’ issue when others are not? It really is not clear to me at all, and the danger is that unless it is well defined the ‘margin of appreciation’ becomes yet another arbitrary legal device that increases both the capricious power of governments and the courts themselves.
Cameron’s insidious dismissal of the ECtHR’s work as ‘small claims’ is as pompous as it unperceiving. Whether a claim is ‘small’ or not depends upon one’s perspective, and one has to wonder what Cameron’s perspective on this is when – as Francesca Klug reminds us – the claims brought against the UK in the ECtHR included:
When journalists were forced to reveal sources; when police could stop and search any of us without suspicion in a designated area; when innocent people's DNA was retained indefinitely; when a 15-year-old boy was flogged by police as corporal punishment; when social services failed to act on complaints of child abuse; when foreign terror suspects were detained indefinitely without charge or trial
And the analogy itself is revealing of his perspective: as a Guardian editorial points out today, the claims heard by the small claims court may be ‘small’ in monetary terms, particularly to our millionaire prime minister, but they are vital to its users. Even the seeming-trivial can raise serious human rights points. I believe that as a general rule, the less powerful a person is, the fewer non-legal mechanisms available at their disposal to challenge incursions into their autonomy, privacy and dignity, the more important human rights instruments will become. So what seems ‘small’ to the Prime Minister, the comfortably off, the able bodied and those at liberty may well not seem ‘small’ to the vulnerable, the powerless and the confined. This point was eloquently expressed by Lady Dorian in a Scottish case – Lyons v State Hospital, a case concerning the hospital’s decision to ban visitors from bringing food to patients and the patients from getting takeaway in case they got fat:
This case does not simply deal with a trivial aspect of everyday life. For inmates of the state hospital, the freedom to receive food parcels from visitors and to make purchases from an external source are some of the few areas in which they may exercise some sort of personal autonomy or choice. I have reached the conclusion that a person's right to choose what they eat and drink is a matter in respect of which article 8 is engaged. If that choice is interfered with, it must be justified. 
In fact, Lady Dorian found the hospital’s decision was unlawful on procedural public law grounds and the Article 8 point was never developed. But the point is this, for all those ‘small things’ that most people take for granted – the right to choose what we eat, who we associate with, who comes into our home, who touches us and how, to wear our hair in accordance with our cultural traditions, the privacy of telephone calls or correspondence, use of mobile phones the internet – for some people these choices and privacies are very vulnerable. Eating healthy food may seem like a laudable aim, but I have no doubt that Cameron and his party, the right wing press, and indeed most people would be in uproar if the state imposed restrictions on what we could eat (look at their response to Jamie Oliver's healthy school dinners!). These ‘small’ rights are invisible precisely because for the most part we take them for granted and we have a variety of means to defend them, so we never think of turning to law. For others, there may be no other tools at their disposal to address these incursions into the most private and intimate of matters.
I used to be a human rights sceptic, I used to think human rights were a set of whimsical aspirational statements beloved of interns in glamorous NGO’s being paid in Pret-a-Manger sandwiches. I thought they were a lazy way of saying “I just want things to be nice” without getting your hands dirty with the detail. Despite the name of this blog, I am not a human rights evangelist and I am all too aware of their limitations. But however fickle and faulted they are as a political weapon, they are one of the best means we have of expressing our concerns to the political and legal establishment, of holding governments to account, of speaking truth to power. Even in those socially and politically important claims that have not succeeded – take McDonald v Kensington and Chelsea, for example - all is not lost. For every lost human rights claim, the Human Rights Act and the Convention have provided a language and a mechanism to articulate matters of great social and political importance, to highlight and test the limitations of justice in our society as things stand. Surely to force the Daily Mail's Richard Littlejohn to side with a human rights claimant over squeamish judges is a victory of sorts?
Without human rights, many pressing matters would be silent before the law. And the ‘softening’ effect that Brown speaks of is not to be sniffed at by comfortable scholars in the academe, unless they would prefer rights to be divested of what limited potency they should have whilst acting as a fig leaf for governments. Human rights should not be sniffed at by anyone with human vulnerabilities to illness or old age. Nor civil libertarians, nor those with family: without human rights Steven Neary, HL and their colleagues would still be subject to arbitrary detentions, in institutions far from home and family (a point rarely made in the media coverage of these cases). Nor should they be sniffed at by celebrities or even the media themselves who have had need to recourse to them in their time. Human rights can be a lifeline; a slippery, frayed and perhaps insecurely tethered lifeline for some, but still worth grabbing hold of nonetheless. Why should we all stand shoulder to shoulder in defence of human rights, wherever we stand on the political spectrum? Because, in the words of Foucault, a scholar hardly known for his stateist or establishment tendencies:
We are just private individuals here, with no other grounds for speaking, or for speaking together, than a certain shared difficulty in enduring what is taking place... Who appointed us, then? No one. And that is precisely what constitutes our right... There exists an international citizenship that has its rights and its duties, and that obliges one to speak out against every abuse of power, whoever its author, whoever its victims. After all, we are all members of the community of the governed, and thereby obliged to show mutual solidarity.