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Arguments for and against abolition of the Human Rights Act disguise much deeper rifts
The debate over the future of the Human Rights Act has been somewhat surreal and even sinister at times. Labour introduced the act but was justifiably accused of violating most of its principles, in its obsession with security. The Tory pre-election proposals were equally confusing, attacking the act as a villains' charter, stopping the deportation of terrorists and offering porn to convicted killers. The act is a leftwing conspiracy, the Conservatives claim, created by perfidious Europeans intent on destroying British sovereignty and introduced by state fanatics of Stalinist proportions.
For some, to be against the act indicates ignorance of the law, moral laxity or both. For others, our patriotic duty is to repeal the act, replace human with British rights and return to the age-old traditions of the common law. It would be much to expect the eloquence or philosophical awareness of Edmund Burke and Tom Paine, the first and unsurpassed contributors to this national soul-searching.
These arguments about the act disguise much deeper rifts. Major social, political and ideological antagonisms are presented in the quaint language of procedure and rights. The relationship between self, other and community are discussed under the code name of the "broken society" and the "relationship between rights and responsibilities".
The tensions between law and democracy are expressed in the vernacular of the "villains' charter" and the "indivisibility of rights".
The European convention on human rights (ECHR), incorporated into British law by the act, has in fact been described as an "exquisitely conservative document". It was inspired by Winston Churchill, drafted by Tory politician Sir David Maxwell-Fyfe and ratified by a Tory government, and was part of the cold war ideological battles aimed at showing the superiority of the western way of life.
Compared with the 18th century declarations and the Universal Declaration that immediately preceded it, the ECHR was a backward step. No economic, social or cultural rights or right to equality exist besides the protection of property. Article 14 banning discrimination offers ancillary protection that must be argued in conjunction with one of the other rights. The key areas of work, housing or immigration, where discrimination is rife, are immune from a human rights claim.
This is important in a time of austerity measures and economic fear. Will people losing their benefits as a result of the announced cuts and welfare reform be able to invoke human rights remedies? It would only seem fair, since both here and in Europe companies have used human rights to promote their interests. The first declaration of incompatibility between British legislation and human rights was given to a pawnbroker (Wilson v First County Trust). In 2009, two hedge funds argued that the nationalisation of Northern Rock, which made their shares in the bank worthless, amounted to a violation of their human rights. Bankers threatened a human rights challenge to the tax on their bonuses here and in Strasbourg .
But this is not unique to Britain. As Upendra Baxi has argued, "the power of human rights discourse has been critically appropriated by global capital". The corporate co-optation of human rights puts them in the service of global capital even when they entail gross violation of the rights of flesh and blood persons and communities.
Against this generosity towards the rich, the most vulnerable members of society have no prospect of a human rights challenge to the cuts. The link between inequality, poverty, ill health, early death and underachievement has been conclusively proven. The government's great reform act will abolish ID cards, restrict the scope of the DNA database and regulate CCTV. These reforms protect privacy, a matter of justified concern mainly to the middle class.
No human rights remedy will be available however to those whose lives will be devastated by the cuts and reforms. Unfortunately our proud British tradition and the derided Strasbourg judges are here on the same side.
Throughout history political strategies have divided humanity into the fully human, the lesser human and the inhuman; for the Greeks the barbarians, for the Christians the heathen, for the nationalists the foreigners, for the colonialists the uncivilised. Today the dividing line separates the affluent from a growing reserve army of precarious life, populating a twilight zone between legality and criminality, unemployment and exploited underemployment.
Human rights belong to all humans on account of their humanity rather than membership of narrower categories such as citizenship, ethnicity or class. Bills of rights on the other hand tend to exclude by definition non-citizens from their protections. The undocumented workers, the single mother losing her benefits, the Guantánamo Bay inmates, are precisely people with no state or law to protect them. They should therefore enjoy the entitlements of humanity, but their plight remains the same whether you keep the HRA or pass a new bill of rights.
The only progressive answer is to introduce social and economic rights into our law and extend the minimum protections of humane life to everyone living in the country. Anything less than that is neither humanitarian nor part of the British tradition. I will accept either a European or a domestic human rights law prepared to do this.
Costas Douzinas is a professor at the School of Law, Birkbeck, University of London.
Law on Trial, a week of events at Birkbeck University at which law is held to public account, concludes this Saturday with a roundtable discussion on Human Rights After the Election.
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