Human Rights - Illusory Freedom: Why We Should Repeal the Human Rights Act

Human Rights - Illusory Freedom: Why We Should Repeal the Human Rights Act

by Luke Gittos
Human Rights - Illusory Freedom: Why We Should Repeal the Human Rights Act

Human Rights - Illusory Freedom: Why We Should Repeal the Human Rights Act

by Luke Gittos

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Overview

A progressive argument for repealing the Human Rights Act. Contrary to contemporary panic around human rights repeal, Human Rights - Illusory Freedom puts a progressive case against the Human Rights Act. It describes how human rights arose as a new language for western governments following the collapse in their collective authority in the aftermath of World War 2 and shows how the UK Human Rights Act has presided over a catastrophic loss of freedom, which continued a process which began with the Tory party in the 1970s. Human Rights - Illusory Freedom makes a positive case for restoring control over our traditional freedoms to the electorate and away from unaccountable Judges in the UK Courts and the European Court of Human Rights.


Product Details

ISBN-13: 9781785356872
Publisher: Collective Ink
Publication date: 02/22/2019
Pages: 144
Product dimensions: 5.38(w) x 8.62(h) x 0.41(d)

About the Author

Luke Gittos is a lawyer, writer and is legal editor for Spiked, online-only UK current-affairs magazine. He regularly contributes across broadcast media on issues relating to law and politics, as well as participating in television and radio legal debates, and the Battle of Ideas festival. Gittos recently set up the City of London Appeals Clinic, and he presides over the London Legal Salon.

Read an Excerpt

CHAPTER 1

Human Rights and the Labour party

The left's embrace of human rights law is a historical peculiarity. Human rights in Europe were pioneered by conservatives who were concerned about the spread of socialism. They were formulated as a means of defending conservative, Christian values from the perceived threat of the Soviet Union. In the UK, the introduction of the Human Rights Act came about because of the historical weakness of the left within the Labour party and the reorientation of the party around a cosmopolitan, middle class voting base. The human rights framework was the brainchild of commercial lawyers at the head of the Labour party who had ascended as the left factions of the party had been retreating. The embrace of human rights by today's left is in spite of the fact that today's framework was dreamt up in opposition to socialism. It was a symptom of the collapse of the left, not of its ascendency.

Human rights and the fear of democracy

In the aftermath of the Brexit vote, supporters of human rights were keen to emphasise that leaving the EU did not mean leaving the remit of the European Court of Human Rights. Retaining the human rights regime came to be seen as retaining some vestige of the progressive European project. It was as though, in the aftermath of Brexit, 'all was not lost' as long as we held on to human rights laws. Human rights proponents were keen to highlight the fact that the Human Rights Act was passed by our own parliament and did not represent a law 'imposed by Brussels'. The fact that the Convention has been incorporated into English law is also used as a retort when the human rights regime is called 'undemocratic'.

Aspects of this are technically true. The EU and the European Court of Human Rights are legally separate institutions. The European Convention on Human Rights came into force in 1953 and Britain granted the individual right to petition the Court in 1966. The UK did not join the European Economic Community until 1976. The European convention is now a part of English law through the 1998 Human Rights Act, which was passed by our parliament under the leadership of Tony Blair. The presence of the Human Rights regime in UK law cannot be attributed to any foreign body nor is there anything to say that leaving the EU entails leaving the European Court of Human Rights.

However, it is also right to see the EU and the European Court of Human Rights as politically and historically aligned. Both the institutions of the EU and the European Court of Human Rights developed out of the emerging European movement following the Second World War. This movement was motivated by the need to manage democracy in the face of political threats to conservative ruling elites, specifically the perceived threat of the spread of socialism from Eastern Europe into the West. The existence of the human rights framework owes everything to attempts by post war elites to centralise economic and political control over the European continent and to manage the influence of the European public.

Until recently, the anti-democratic motivations of the Court's founders have been hidden by an appeal to humanitarian motivations. It has become commonly accepted that the creation of the European Court of Human Rights, and related human rights institutions, were designed to 'prevent a repeat of the atrocities of war'. However, it is more accurate to say that the 'atrocities or war' were used as a means of discrediting democracy as a means of protecting individual rights.

Marco Duranti's recent book The Conservative Human Rights Revolution, provides insight into the anti-democratic foundation of the European human rights movement. According to Duranti, the 'surprisingly small group of individuals (who) shaped the basic contours of the European human rights system', yearned for the mythical Christian Europe of a bygone age'. These were individuals like David Maxwell Fyfe, a staunch free market conservative. He, like Churchill, saw a serious threat in the apparently socially democratic direction taken by Britain following the election of Clement Atlee. Socialist and communist parties contributed to the drafting of the European Convention and there could be little doubt that the Convention had a 'socially democratic orientation', but the primary role of the human rights framework was to provide an alternative moral framework to that offered by socialism.

The European Human Rights movement began in 1948. World War 2 had concluded with the division of Berlin between East and West. The Soviet Union had blocked access to West Berlin in response to the Western allies introducing the Deutschemark. Also in that year, countries in both the East and the West of Europe began receiving 13 billion in aid from America under the Marshall Plan, which many saw as an attempt at suppressing Communist influence in Western Europe. Perhaps most significantly, the Communist party of Czechoslovakia, backed by the Soviet Union, staged the 'Victorious February' Coup de tat – seizing power that they would retain for two decades. This represented the first overthrow of a democratic government by Soviet backed forces since the conclusion of the war. These events created an atmosphere in which the fear of communism among Europe's elites was at the forefront of foreign policy.

It was against this background that the first Hague conference took place. At the Hall of Knights, a network of politicians, journalists, philosophers, artists and thinkers gathered to discuss the future of Europe. The hall was a palatial banqueting space, which set the Congress up as an alternative parliament for a divided continent. 800 contributors attended at the invitation of the International Committee of the Movements for European Unity, an organisation which collated the various campaigns for increased European federalism which had persisted since the early 20th Century. Seventeen countries were represented. The purpose of the congress was to 'demonstrate the existence, in all free countries of Europe, of a body of public opinion in support of European unity, to discuss the challenges posed by European unity and propose practical solutions to governments'. By the end of the Congress, the delegates would have formulated a 'message to Europeans', promising the formulation of a new 'human rights court' and the establishment of United Europe, throughout whose area 'the free movement of persons, ideas and goods is restored'.

The reference to 'free' countries was highly significant. Firstly, because it defined those attending the congress in opposition to the unfree countries of Eastern Europe, who the West wanted to portray as beholden to Moscow. But secondly, because it showed how the Congress was setting about to define what it meant to be a 'free' country in post war Europe. To be 'free' meant to be free from communism. Right from its inception, the European movement attempted to take ownership of the meaning of freedom as part of its attempt to define itself against the evils of the Soviet Union. Human rights laws would come to be fundamental to the European movement's attempt to define freedom in its own image.

The men who arrived in the Hague intent on crafting a new future for Europe were, in Duranti's words, 'united in their belief that a democracy in which tyranny of the majority held sway was little better than a dictatorship'. Duranti notes 'while their socialist opponents called them anti-democratic, conservatives saw their aim at the Hague congress as protecting democracy from itself'. Throughout the Congress, the spectre of Nazism and the threat of communism were presented as possible outcomes to untrammelled democracy.

Winston Churchill opened proceedings at The Hague by proclaiming that the Congress could 'fairly claim to be the voice of Europe'. Without reading too much into Churchill's opening remarks, these few words were telling. Churchill's claim that the congress could be considered the 'voice of Europe' was made despite the fact that most of the attendees were not there on any democratic mandate. While some delegations included serving members of parliament, the Congress was predominantly attended by people who had either recently been rejected by their voting public or had never won a vote in their lives. Those delegations which did include elected members of parliament tended to be dominated by Catholic conservatives over liberals and socialists. The claim in the Congress' mission statement that they wished to 'demonstrate the existence, in all free countries of Europe, of a body of public opinion in support of European unity' suggested that the performative display of unity was more important than its political substance.

Churchill argued that nation state based democracy had been responsible for the rise of Hitler. He spoke of 'the gradual assumption by all the nations concerned of that larger sovereignty (as opposed to national sovereignty) which can alone protect their diverse and distinctive customs and characteristics and their national traditions all of which under totalitarian systems, whether Nazi, Fascist, or Communist, would certainly be blotted out for ever'. Throughout the Congress, totalitarianism would continue to be held up as a possible outcome for nation state democracy in Europe. Attendees talked about the need 'to modify the traditional nation state pattern, establish political jurisdiction broad enough to satisfy the political and economic needs' of the time. A speech given by one leader showed how human rights were always conceived of as part of broader efforts towards European feudalism. She proclaimed 'that (Europe's) future is a federalist future we believe that the defence of human rights is impossible in international terms except in a federalist framework'.

The threat of communism was key among the concerns for Churchill personally. He had written to Anthony Eden in 1942 to say that his "thoughts rest[ed] primarily in [...] the revival and glory of Europe," and feared that Europe's only other path was 'toward Bolshevism'. He had been ousted from the UK government in 1945 by Clement Atlee's Labour party on a programme of wide ranging social reform. The creation of the welfare state, the establishment of the National Health Service and a programme for mass home building had proved popular with the British public. Churchill had accused Atlee of attempting to install a 'socialist dictatorship' in Britain in the run up to the election. His address to the Congress regularly equated Communism with Nazism, saying 'Europe has only to arise and stand in her own majesty, faithfulness and virtue, to confront all forms of tyranny, ancient or modern, Nazi or Communist'.

Today, 'protecting democracy from itself' is still at the heart of the human rights movement. A 2017 report by a conservative think tank identifies the human rights act as a vital curb on the 'totalitarian' impulses of a socialist government under Jeremy Corbyn, on the basis that the Convention is deferential to private property rights. A 2017 campaign by the left leaning human rights group Rights Info crowd funded a film on how human rights can 'stop the rise of far-right'. The Crowdfunding invitation featured footage of Nazi parades and Jews in Auschwitz interspersed with modern footage of marches by the English Defence League and US white nationalists. The message of the film was that human rights in the present can prevent the repeat of evils in the past, placing a curb on the apparent rise of the far right among the general population. The claim that democracy gives rise to tyranny has remained the central argument of human rights supporters from their inception to the modern day.

The fear of socialism motivated other Human Rights institutions as well. Kirsten Sellers' book The Rise of Human Rights explores in forensic detail how the Universal Declaration of Human Rights arose from the West's need to present a coherent self-image following the second world war, explaining how human rights went from a fringe interest among a minority of academic lawyers to 'formulating the language of late 20th Century international relations'. The shambolic and inconclusive trials at Nuremberg and Tokyo against war criminals symbolised a lack of moral authority experienced by the Allies in the aftermath of War. The language of 'human rights' moved from a fringe obsession among international lawyers to a key tool in the armoury of political actors precisely because universalism and consensus were missing from the conduct of international relations. In her words, ''The iron fist of global power was thus wrapped in the velvet glove of international humanitarianism'.

For Sellers, ideas about Human Rights originated during the enlightenment, 'as reason began to triumph over religion and the new sensibility embraced ideals of individual freedom and social equality'. However, it was not until the early 1940s that the modern human rights system began to influence global politics. The human rights movement gained significant international momentum with the founding of the United Nations, in the San Francisco Conference in April 1945. America had laid the plans for a new 'international organisation' since before the war, one which would replace the precarious balance of power that had persisted in the early years of the 20th Century. This ‹new global conglomerate› would be the most effective way of securing peace and stability in the post war world. The ‹heart and the stomach and the liver of the organisation› would be the provision of a veto to the major global powers: Russia, Britain, America, China and France which would allow the largest countries to better manage the affairs of the smaller ones.

The language of human rights would provide a moral justification to this new world order, which would place stability and enduring peace as the highest priority of international relations. The idea that human rights laws could embody human dignity meant they could be made sacrosanct, and above the political concerns of the countries signing up to them. In other words, they could resist the influence of national populaces. But this utopian vision did not last long. Right from the beginning, disagreements about the provisions of the Universal Declaration illuminated the disparate and divergent political positions of the contributing counties. The attempt to craft an apolitical, democratically removed baseline for all the countries of the world, one situated in the primacy of human 'dignity' was immediately stalled by the social and political realities of the signatory states.

Again, the fear of bolstering socialism in Europe was at the forefront of concerns for both the UK and the US. They worked hard to squeeze out a 'right of political rebellion' from the early drafts of the Universal Declaration. Both countries had experienced wide spread civil disobedience in the early parts of the 20th century, from an organised and increasingly militant working class. The idea of bolstering these movements with human rights protections was politically unpalatable. While the Deceleration included social and economic rights, the precise meanings of what these rights would entail was hotly disputed. The British defi ned social and economic rights narrowly, as providing for some sort of social insurance. Other countries, including Panama and Venezuela, conceived of social and economic rights as providing 'social security from the cradle to the grave'. It was simply not possible to create a document which could allay the fears of socialism from one part of the globe with the active promotion of socialist principles from another.

Accordingly, the Universal Deceleration was not a radical document. Rather 'it accurately reflected the conservative social mores and liberal economic values of the immediate postwar era'. Sellers notes that 'it proclaimed trade union rights and the rights to enter into and dissolve marriage freely but also reaffirmed the family as the natural and fundamental unit in society' and carefully reasserted the 'right to own property'. Much like the drafters of the European Convention on Human Rights, the drafters of the Declaration were driven by conservative principles and an overriding concern to ensure stability. Their concern to enshrine the right to private property reflected their concerns about the spread of socialism, a fear shared by the drafters of the European Convention. Today, it is the fear of democracy that echoes in our arguments about human rights. This fear is shared today by both the left and right.

Human rights in the UK

There were two important contexts to the passing of the human rights act and the incorporation of the European Convention into UK law. The first was the reorientation of the Labour party. The Act was introduced among a package of 'constitutional reforms' which also included devolution and the reform of the House of Lords. This focus on constitutional reform, which had historically been of interest only to a narrow group of Tory peers, arose in the early 1990s following two electoral defeats for Labour in the 1980s and the apparent discrediting of their traditional social democratic agenda. The passing of the Human Rights Act spoke to a Labour leadership who had reoriented itself around the cosmopolitan middle classes and away from their traditional working-class base.

(Continues…)


Excerpted from "Human Rights"
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Copyright © 2018 Luke Gittos.
Excerpted by permission of John Hunt Publishing Ltd..
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Table of Contents

Introduction 1

Human Rights and the Labour party 19

Terror and freedom: Four attacks 40

The Claims of Human Rights Organisations 60

The Judiciary's democratic mandate 94

Conclusion - The fear of freedom 116

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