Human Rights or a Bill of Rights?

27 November 2012

By  also posted at Critical Legal

The debate over the future of the Human Rights Act (‘HRA’) has been some­what sur­real. The Labour pos­i­tion is schizo­phrenic. Labour intro­duced the Act but was jus­ti­fi­ably accused of viol­at­ing most of its prin­ciples in its obses­sion with secur­ity. But schizo­phrenia is not a Labour prerog­at­ive. The Tory pro­pos­als are equally con­fus­ing. Memor­ies of the Thatcher years with their many viol­a­tions and huge cent­ral­iz­a­tion made David Cameron prom­ise that his Bill of Rights would strengthen liber­ties and ensure proper demo­cratic account­ab­il­ity over new rights. Imme­di­ately behind the civ­il­ized part, the loony Right attacks the Act as a vil­lains’ charter, stop­ping the deport­a­tion of ter­ror­ists, offer­ing porn to mur­der­ers and vot­ing rights to con­victs. The Act is a left-​wing con­spir­acy, it claims, cre­ated by per­fi­di­ous Europeans intent on des­troy­ing Brit­ish sov­er­eignty and intro­duced by state fan­at­ics of Sta­lin­ist proportions.

For the human rights enthu­si­asts, to be against the Act indic­ates ignor­ance of the law, moral lax­ity or both. For the Bill of Rights sup­port­ers, the many viol­a­tions dur­ing the Act’s life prove its fun­da­mental flaw. Our pat­ri­otic duty is to repeal the Act, replace ‘human’ with ‘Brit­ish’ rights and return to the age-​old tra­di­tions of the com­mon law and the ‘free­born Eng­lish­man’. One wishes that the argu­ments had the elo­quence or philo­soph­ical aware­ness of Edmund Burke and Tom Paine, the first and unsur­passed con­trib­ut­ors to such national soul-​searching. This is per­haps too much to ask.

The debate is our pale ver­sion of the Amer­ican cul­ture wars. 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 goes under the code names of the broken soci­ety, the ‘big 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, one of the great red her­rings of the debate. Finally, the ten­sion between national sov­er­eignty and imper­ial glob­al­isa­tion is dis­guised by the lan­guage of national pride and cos­mo­pol­itan uni­ver­sal­ism as well as dis­agree­ments about ‘eth­ical’ for­eign policy — the most absurd oxy­moron of our times.

Let us take a closer look at the European Con­ven­tion on Human Rights (‘ECHR’) incor­por­ated into Brit­ish law by the Act. Des­pite accus­a­tions of left or lib­eral bias, the Con­ven­tion is an ‘exquis­itely con­ser­vat­ive doc­u­ment’, as staunch right-​wingers Peter Oborne and Jesse Nor­man put it in their pamph­let ‘Churchill’s Leg­acy’.1 The con­ven­tion was inspired by Win­ston Churchill, draf­ted by Tory politi­cian Sir Maxwell-​Fyfe and rat­i­fied by a Tory gov­ern­ment. As Samuel Moyn has con­vin­cingly shown in his The Last Uto­pia the ECHR was a des­per­ate attempt of the European right and Cath­olic per­son­al­ists to re-​claim the moral high ground after their eth­ical debacle in the World War.2 The Con­ven­tion was part of the cold war ideo­lo­gical battles aimed at show­ing the superi­or­ity of the West­ern way of life. Com­pared to the eight­eenth 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 except for 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.

Even the civil and polit­ical rights included are phrased in a con­ser­vat­ive way. No right to res­ist­ance exists. On the con­trary, the Con­ven­tion allows the derog­a­tion of rights in cases of emer­gency, a pro­vi­sion repeatedly used by dic­tat­orial regimes (the Col­on­els in Greece) and demo­cratic gov­ern­ments (the UK in rela­tion to North­ern Ire­land). Restric­tions on the polit­ical activ­it­ies of ali­ens are allowed, another major cold war inven­tion used today for dif­fer­ent pur­poses. Sub­stant­ive rights are resid­ual: the pro­tec­ted enti­tle­ment is lim­ited to what is left once the wide and vague restric­tions, lim­it­a­tions and pen­al­ties are taken into account. If you go through the second para­graphs of Art­icles 8, 9, 10 and 11 you will not find many restric­tions of rights that can­not be jus­ti­fied by the blanket excep­tions. The Con­ven­tion offers a list of legit­im­ate restric­tions and lim­it­a­tions of rights and, incid­ent­ally, some protection.

All this means that legal real­ism is the only the­ory applic­able to the ECHR’s case-​law: the European Con­ven­tion is what the judges say it is. Who inter­prets is much more import­ant than the document’s stip­u­la­tions. The debate about the qual­ity of Stras­bourg judges and com­par­is­ons with our own judi­ciary, a main­stay of the right wing press, is there­fore cru­cial. Undoubtedly racist under­tones hide behind the head­lines. It is also true that many states see the Stras­bourg judge as an ambas­sador for national interest. In true real­ist col­ours, the com­pos­i­tion of the bench deal­ing with a case is often more import­ant than the legal argu­ment. Know­ing the pass­port of the judge has replaced the real­ist advice to advoc­ates to find out what break­fast the judge had the morn­ing of the hear­ing. But are the dif­fer­ences between Stras­bourg and the com­mon law that great?

Let me ask a simple ques­tion. Will people los­ing their bene­fits as a res­ult of 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 nation­al­iz­a­tion 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 here and in Stras­bourg of the tax on their bonuses. They did not bring a case for fear per­haps of the res­ult­ing oppro­brium rather than because of the paucity of the legal argu­ment. 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’.3The 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 of the cuts. The link between inequal­ity, poverty, ill health, early death and under­achieve­ment has been con­clus­ively proven. The government’s prom­ised rights reforms con­cern ID cards, the scope of DNA data­base and a reg­u­la­tion of CCTV. These reforms, if they hap­pen, pro­tect pri­vacy, a mat­ter of jus­ti­fied con­cern mainly to the middle class. I do no wish to dimin­ish these threats. But no human rights rem­edy will be avail­able to those whose lives will be dev­ast­ated by the cuts and reforms. Unfor­tu­nately our proud Brit­ish tra­di­tion and the derided Stras­bourg judges are not far removed here.

Let me men­tion one other area in which the sur­vival or repeal of the Act will have little impact. Failed asylum seekers have rudi­ment­ary pro­tec­tions and, accord­ing to a recent report, ‘end up liv­ing as ghosts on the streets of Bri­tain because of gov­ern­ment policy and decision mak­ing that strips them of their rights and dig­nity.‘4 They are humans of no human­ity. They join the undoc­u­mented migrants, estim­ated at around 1 mil­lion. This is a shadow human­ity — without shel­ter, food, the right to work — that lives a ghostly life in our cit­ies sur­viv­ing on less that one dol­lar a day. In a doc­u­ment­ary about the plight of undoc­u­mented or sans papi­ers immig­rants liv­ing an under­ground life in Lon­don, Jami, who sleeps rough in parks, addresses people like us who, from our com­fort­able homes, keep pro­claim­ing Human rights, human rightsWhats the dif­fer­ence between me and them? They are human like me. People like me have two hands, two eyes and two legs. Whats the dif­fer­ence between me and them? Human rights, human rights. But where are the human rights for the asylum seekers?5 If, as lib­eral philo­sophy claims, human rights belong to humans on account of their bare human­ity and not of mem­ber­ship of smal­ler cat­egor­ies such as nation, state or class, Jami and his friends should have at least the min­imum con­sol­a­tions of human­ity. They have no human rights.

Echo­ing a haunt­ing line that links them to a suf­fer­ing human­ity from Shylock to Primo Levi, Jami, a nat­ural philo­sopher, states an indis­put­able truth: we may all be human but human­ity has always excluded, des­pised and degraded some of its parts. Human­ity is not one: it has always been split between full and lesser humans. Through­out his­tory, the moral claims to uni­ver­sal equal­ity have been accom­pan­ied by polit­ical strategies, which 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 ali­ens, for the colo­ni­al­ists the unciv­il­ized. Today a cent­ral divid­ing line sep­ar­ates the afflu­ent from a grow­ing reserve army of pre­cari­ous life, pop­u­lat­ing a twi­light zone between leg­al­ity and crimin­al­ity, unem­ploy­ment and exploited under-​employment. The uni­ver­sal­ists argue that 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 Greek and Span­ish unem­ployed youth and the Guatanamo Bay pris­on­ers are pre­cisely people with no law to pro­tect them. They should there­fore enjoy the enti­tle­ments of human­ity. They have none. There is noth­ing sac­red in the abstract naked­ness of being human, if not accom­pan­ied by state pro­tec­tions. The debate between human and Brit­ish rights leaves equally out­side these hom­ines sacri, the sac­red and sac­ri­fi­cial vic­tims of our world. Their plight remains the same whether you keep the HRA or pass a new Bill of Rights.

The only pro­gress­ive legal step 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 European human rights or a domestic bill of rights pre­pared to do this. Of course a change in the law and the cre­ation of formal rights does not mean that the mater­ial con­di­tions for their enjoy­ment will be provided. We know that the gap between legal state­ments and life in the world is huge. But the dog­matic and undif­fer­en­ti­ated pro­mo­tion of one or the other side in the Manichean Europe or Bri­tain divi­sion has not much to do with the rad­ical tradition.

Cos­tas Douz­i­nas is Pro­fessor of Law and Dir­ector of the Birk­beck Insti­tute for the Human­it­ies, Uni­ver­sity of Lon­don. His most recent books include Philo­sophy and Res­ist­ance in the Crisis: Greece and the Future of Europe and, with Conor Gearty [eds], The Cam­bridge Com­pan­ion to Human Rights Law.


  1. Peter Oborne and Jesse Nor­man, Churchill’s Leg­acy (Liberty, 2009)
  2. Samul Moyn, The Last Uto­pia (Har­vard Uni­ver­sity Press, 2010). 
  3. Upen­dra Baxi, The Future of Human Rights (Oxford Uni­ver­sity Press, 2005) 
  4. ‘Dis­pute over report on “des­ti­tute” asylum seekers’, BBC Wales, 4 Feb­ru­ary 2011, 
  5. J. Domokos and D. Taylor, ‘Asylum Seekers: Britain’s Shadow People’ 16 March 2009, www​.guard​ian​.co​.uk/​u​k​/​v​i​d​e​o​/​2​0​0​9​/​m​a​r​/​1​6​/​a​s​y​l​u​m​-​s​e​e​k​e​r​s​-​r​e​f​u​s​e​d​-​b​r​i​t​ain 

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