Reform of the Human Rights Act – The government’s lack of humanity

Last week, the government lost an appeal before a court. Ministers began to talk about getting rid of this court, rather than ordinary people who are expected just to pay their fine/do what they have been told.

I wish it was the first time.

In 2019, I was a part of two cases against government. First, the Supreme Court reinstated parliament after the government sent its elected representatives home to block them from scrutinising the Brexit negotiations. Just days later, ministers declared they would ignore an Act of Parliament requiring them to avoid a “no-deal Brexit”. We went to court and were rebuffed by the government.

It didn’t take long, however, for ministers to seek revenge. Ministers launched a campaign of threats, including one to abolish the Supreme Court. They also attacked judges and lawyers with such viciousness that a parliamentary report found it was putting at risk the impression that the independence and integrity of the judiciary, a key component of our constitution, was being compromised.


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The European Court of Human Rights is the latest court to feel the wrath from the executive. A judge ordered the government to prove that its plan for transporting vulnerable refugees to camps of Rwandan refugees was legal before it could proceed. Ministers and their allies responded by proposing to leave the European Convention on Human Rights, an international treaty that Winston Churchill inspired.

There was a time when it was not difficult to believe that the government had to act lawfully. It is more telling to see the arguments made and supported by ministers. We are told that the Convention allows “foreign judges” to infringe on “our sovereignty”. When one digs down, however, what the Convention’s critics really object to is treating everyone as equally human. As I was writing my book (Overruled: Confronting our Vanishing Democracy in 8 Cases) I realised that that this wasn’t restricted to human rights. The willingness to see others as equally human is not just the key fault-line running through our democratic crisis, it’s the fault-line running through our politics.

The Convention codifies the qualities that are essential to human dignity and society. The rights it enumerates are based on our humanity, regardless if we are of any race, gender, nationality or other quality. It made it a law for the first time that we all share the same basic humanness. Over the 63 years of its existence, the Court of Human rights has intervened, on hundreds of occasions, to force the British state to treat it’s citizens with basic human dignity. The Court’s claims ended the criminalization and torture of homosexuality. It also required that public authorities properly investigate child abuse. The Human Rights Act of 1998 allowed Convention claims to be brought in domestic courts. This opened up human rights for those who couldn’t afford the lengthy Strasbourg litigation.

The Convention’s critics adopt the Victorian view of “sovereignty” rejected by Churchill and the other framers of the Convention. They believe that sovereignty belongs to a state (in practice, the government). This was the pre-convention view – when states could do what they liked within their borders without censure from their neighbours. This view of sovereignty enabled European powers across their colonies to commit atrocities. Just a few short years before the Convention was adopted, British forces massacred peaceful protestors at Amritsar, and sports fans at Croke Park for the crime of jeering. They also sent troops against striking miners in Tonypandy. Anyone who thinks “that sort of thing can’t happen here” should read their history. The Convention embraced a new type of sovereignty – of the people establishing that the state must treat us with basic dignity, even within its own borders. The Court and the Convention do not pose a threat to citizens’ sovereignty. They only limit the power of the government.

The objection to “foreign judges” is, in this light, rather strange. Convention is an international treaty that enshrines rights that are derived from our humanity, not our nationality. It’s right that each state party contribute a judge to the court that enforces the Convention. Judges are equal in human nature, and only their relevant legal expertise should matter. It doesn’t matter which section of the map they were born in. In any case, to make sure national cultures and democratic legislatures are respected, the Convention makes provision for laws passed democratically to be given weight (part of the problem with the Rwanda plan is that the government tried to begin deportations without first obtaining Parliament’s consent). One can only object to “foreign judges” if you don’t think everyone is equally human. In fact, the government is proposing to replace the Human Rights Act with a British Bill of Rights. We are told it will contain only the “British rights”. This begs the question: why are British citizens deserving of fewer rights – less human – than our European cousins?

The human rights debate, however, is only the latest in a long list of episodes that reveal the difficulty that the powerful have with seeing other people as equally human. In the 00s the Coalition government imposed a series of degrading tests on disabled people seeking state support, boasting of its measures to humiliate “skivers”. Some MPs suggested that the poor should not be sterilized. Last year, as the latest “cost of living crisis” began, majority MPs laughed and jeered as one member tried to bring the plight of disabled people to the government’s attention. We see, almost weekly, ministers making “gaffes” in television interviews on the cost of living crisis but we rarely look for the underlying reason – they are simply unable to empathise with those they see as less human.

Immigrants and refugees are, of course, the victims of some of the state’s most extreme dehumanisation. Ministers and their allies have, indeed, barely concealed the fact that they see those seeking sanctuary (whether political or economic) on these shores as less than human – describing them as a “swarm”, “flood”, “tidal wave”, “invasion” and even “cockroaches”. In the Rwanda plan they are pawns – there to be beaten and humiliated so the government can stir up culture war talking points in advance of by-elections this week.

My book describes how our contested humanity is at the heart of the democratic crisis. Democracy is, as described by Abraham Lincoln, “government for the people, by the people, and of the people”. How can the government and its aides attack human rights, while still claiming they are democrats. Because they don’t see most of us as people.