Tory human rights plan won't work

The proposal to create a British bill of rights would only serve to put more restriction on the government's freedom of action

Sooner or later all governments, of any political hue, become frustrated with human rights. At one time "natural rights", as they were called, referred to those moral rights we have against all others (with correlative duties upon them). These rights are derived from the negative formulation of the golden rule: we ought not to treat others as we would not want others to treat us. So, I have a right that you do not punch me on the nose, you have a right that I do not tell you lies you believe, and so on.

The number of rights which form this class of "natural rights" is relatively few, and the rights enshrined in the European convention on human rights are not of this kind. Rather, the convention is concerned with rights citizens have against the state that it secures for them a diverse range of human goods. These civil rights require the signatory states, which include the United Kingdom, to take positive steps to secure them for its citizens. An example is the convention right to education. I obviously do not have a right against you that you come round my house and teach me anything, but we do have a right that the United Kingdom takes positive steps to ensure our education. It is perfectly possible to imagine a world where it was thought appropriate to have a right, in the convention's sense, to a broadband internet connection.

At least at the margin, that some interests and not others are given protection under the convention appears to be simply a matter of political choice. Housing and healthcare may be thought to be just as important as education, but it is only the latter which is given legal protection. The label "human rights" has a rhetorical pull because it confuses the small number of "natural rights" we (uncontroversially) have one against another with the very large, and controversial, range of civil rights we have and could have against the state.

The convention is concerned with constraining the freedom governments have to choose how to behave. For any British government which thinks of itself as trying to act in the way it best perceives the common good, the rights of individuals to restrain how it behaves will always chafe, particularly given that the rights embodied in the convention are not of the limited "do not torture" kind one might naively expect. It is therefore extremely surprising that one proposal being floated by the Conservatives is that any new British bill of rights should afford citizens with even greater protection than offered by the convention. Such further protection would not counterbalance the rights we already have, but place more restriction on the government's freedom of action.

Prior to the Human Rights Act, those who wished to allege a violation by the UK of one or more of their convention rights had to go to the European court of human rights (ECHR) in Strasbourg to do so. That no redress was available in this country was itself a violation of one of the convention rights, as it is a duty under article 13 that signatory states ensure that there is an adequate remedy before their national courts for violation of other convention rights. Our Human Rights Act meant that an adequate remedy for the violation of a convention right was available here. Repealing the Human Rights Act and replacing it with nothing would place the UK in breach of article 13 once more, and is rightly not an option the Conservatives appear to be considering.

The Conservative proposals, so far as discernible, do not contemplate our returning to the position before the Human Rights Act, nor is it seriously proposed that we withdraw from the convention. The convention embodies the idea, so obviously important after the second world war, that individuals cannot be used as a means to fulfilling any ends the state sees fit. No modern politicians wish to align themselves with Nazi Germany or the Soviet Union.

The convention helps to ensure compliance with human rights norms, with countries which fail to do so, like Belarus, internationally isolated by being excluded from the Council of Europe. Because of this, it is obviously important that signatory states do not get to interpret for themselves the convention's open textured provisions. The ECHR, or equivalent body, is necessary if the convention is to fulfil its purpose. If we do not think Belarus should be free to interpret the convention in any manner it sees fit, the bargain is that we are not free to interpret the convention for ourselves either.

However much we may disapprove of certain decisions of the ECHR or how it operates, and some criticism is patently justifiable, we are not free to repatriate, as some Conservative statements seem to suggest, to either our courts or to parliament the proper interpretation of the convention. If the ECHR holds that to be convention complaint the signatory states must take a particular action, for an English court to hold otherwise would place the United Kingdom, so far as the ECHR is concerned, in contravention of both the substantive human right violated and article 13.

Given these political and legal constraints, any Conservative bill of rights is unlikely to produce substantive change.

Robert Stevens posts on Cif under the name NotaTrot. This article was commissioned via a You tell us thread