Human rights law & the erosion of politics

European Court of Human Rights. via

Why should any of us care about politics? The obvious answer is that the politicians we elect make decisions that affect our lives and the world we live in. Increasingly, however, the range of matters that can be decided by our chosen representatives is narrowed and stunted. Those who live in the European Union find that much is decided for them by processes that are beyond the reach of democratic politics. But there is another way, affecting those European countries and many others, in which the scope of political decision-making is reduced: the constant expansion of international human rights law. As the range of topics that are subject to it grows, the area in which democratic legislatures can make their own decisions contracts. Politics is not corrupted thereby, but it is limited and, in the end, downgraded. Strangely, though, the people who promote the onward march of human rights seem not to notice the gradual erosion of what may be one of the most important rights of all in the modern world: the right to live in a properly functioning democracy.

Take, as just one example, the disputed question of whether prisoners should be allowed to vote in elections. This is clearly an issue on which fair-minded people can disagree. Among the world’s liberal democracies, policy varies. In New Zealand, prisoners cannot vote; in most European countries they can; in Australia they cannot if their sentence is for more than five years; and in the United States almost all states deny felons the vote during incarceration (Maine and Vermont are the exceptions), with many states continuing the ban after release from prison. The policy of the United Kingdom has long been to deny the vote to incarcerated criminals. But in 2006 this was challenged in the European Court of Human Rights in Strasbourg, which found in an aggrieved prisoner’s favor. Since then, while the British government has faced repeated calls to revise its law, the House of Commons has held firm, voting in 2011 by a large majority to maintain the ban. Prime Minister David Cameron has said that it would make him “sick in [his] stomach” to grant the vote to imprisoned murderers and rapists.

To American eyes, this stand-off between Strasbourg and London might look like a simple and predictable story: international human rights law meets politics; politics wins. But if you stand back and look at the larger contest between those two forces in recent years, a very different picture emerges, at least where Britain and Europe are concerned. International human rights law is an incoming tide, and many of the policies that the democratic legislature has supported, and may still want to support, are crumbling like sandcastles before it.

The European Convention on Human Rights (1950), to which the United Kingdom is a signatory, is one of several regional conventions drawn up in the wake of the Universal Declaration of 1948. It was created by the Council of Europe, a body which remains quite distinct from the European Union, and which is responsible for the European Court of Human Rights in Strasbourg. Unlike most of the other regional human rights conventions, this one has had a profound effect on the development of law in the countries that signed and ratified it. In almost every case, when the Strasbourg Court has found against the U.K. government, British law has been swiftly changed; the issue of prisoners’ voting rights offers a very rare exception. And ever since the Convention was incorporated into British law in 1998, the United Kingdom’s own Supreme Court, while unable to strike down a domestic law, has been able to make a “declaration of incompatibility” on human rights grounds, which normally has the effect of persuading Parliament to amend or repeal the incompatible law in question. This gives British judges a de facto power, though not a de jure one, over the legislature; given the United Kingdom’s constitutional traditions, it is not a power that they are always happy to possess.

Defenders of this new human rights regime would say that human rights law was indeed designed to limit what a democracy can do, since its fundamental purpose, felt so keenly in the aftermath of World War II, was to prevent majoritarian tyranny. At the same time, they would add that some of the rights defended by this body of law—freedom of expression and association, freedom from arbitrary arrest—are themselves political, setting the basic conditions for life in a democracy. Yet as soon as you start leafing through any standard textbook on European human rights law, you quickly discover that it extends far beyond the enforcement of minimum standards for the avoidance of tyranny. Many of its ingredients are positive rights expressed in terms of abstractions that must be respected, such as the right to a private and family life. And the applications of these rights that have been made by the courts impinge on many aspects of human relations within even a well-functioning, non-tyrannical modern state.

On the face of it, European human rights law operates as a straightforward application of the principle that sovereign states are bound to keep their treaty obligations. The United Kingdom is subject to the European Court of Human Rights because it signed a “convention,” a multilateral treaty to that effect. But this was a treaty of a quite unusual kind. While most multilateral treaties are about policy in a broad sense (on merchant shipping, greenhouse gas emissions, or whatever), this one was an agreement to observe a higher kind of law. When the judges in Strasbourg issue their rulings, they are not just explicating contingent treaty obligations; rather, they are setting out what are regarded as objective rights, which stand outside and above normal laws. To use the jargon: the European Convention is seen as declaratory of those rights, not constitutive of them.

Reading the standard textbooks, which are written by lawyers, not philosophers or historians, you might get the impression that these rights just exist “out there,” having been scientifically derived from some objectively proven first principles. As their account skitters through the obligatory opening section, the authors will either flatly declare that there are rights, and that they flow from the inviolable nature of human dignity, etc.; or they will give you a potted historical summary, in which the existence of these rights was gradually established by a canonical sequence of great thinkers (Locke and Paine being the favorites). It’s as if you were reading the sort of pious but perfunctory history of great discoveries that occurs in the opening pages of a chemistry textbook (“then Lavoisier discovered oxygen . . . then Faraday identified benzene . . .”). Never mind that discoveries about the nature of the physical world have been largely cumulative, whereas successive thinkers may have built their “rights” on the foundations of wildly differing moral or religious theories.

And yet, however much the whole body of human rights is presented as quasi-scientific fact, the awkward truth is: there is no science—no objective and generally accepted method or body of knowledge. Even when an eminent modern philosopher such as John Finnis tries to deduce the full range of human rights from first principles, such a deduction is just one competing theory among many.

The fact that there is a broadly agreed body of essential human rights can be understood, nevertheless, if we lower our expectations a little. We need to recognize that these are simply the highest common factors, the most important things that we—members of modern democratic societies, coming from a variety of moral and/or religious backgrounds—can agree on. Indeed, living as we do in plural societies, it is surely beneficial that these essential values should not be derived from a single “scientific” starting-point; we can all concur that torturing people is wrong, without having to agree about the precise reason—be it religious prohibition, ethical argument, or sheer gut-feeling. And since many of the things enshrined in “human rights” are hugely important, this ability of human rights language to command respect across a wide range of differently thinking people is of great value.

That value will obtain, however, only when the whole human rights enterprise sticks to the essential points. All can accept the notion of fundamental human rights, as a way of saying that people should be protected against tyranny, but when those rights are elaborated into detailed instructions about how we may and may not make our arrangements within a thoroughly non-tyrannical state and society, the value of the whole human rights enterprise is put in jeopardy. And that is what the expansion of human rights law has already begun to do. What should have been a set of limiting conditions, setting an outer framework beyond which political power should not go, has become instead a set of generative principles, out of which more and more specific rules can be deduced about how people should act in normal life. Instead of marking and defending the outer frame, human rights law has been busily filling up the space within it.

This tendency has been hugely accelerated by the device of stating rights in positive and open-ended terms. Let’s look at one particular example, Article 8 of the European Convention, which declares:

Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

As it happens, this right has a long, identifiable legal history. Its origins go back to the Virginia Declaration of Rights (1776), with its injunction against “general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence.” That was a clear prohibition of a specific abuse of state power. When the Fourth Amendment (1789) set out the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures,” the scope was expanded somewhat, but still with the obvious aim of guarding against oppression. The Universal Declaration (1948) broadened the remit again, stating that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks,” but this wording too remained largely within the same current of thought, while adding the terms “privacy” and “family” in the light of what had been perpetrated by recent totalitarian regimes. Fatefully, though, the European Declaration (quoted above) went much further. While its phrase “interference by a public authority” did cleave to the established tradition, its opening statement—“Everyone has the right to respect for his private and family life, his home and his correspondence”—was entirely general. Using the law to guard people against “arbitrary interference” in those areas is one thing; getting it to defend and promote “the right to respect” for them has turned out to be quite another.

Over the years, the judges at Strasbourg have discovered a bewildering range of ways in which Article 8 can be applied. Whilst the fact that it has generated a law of privacy, governing such things as the photographing of celebrities by paparazzi, might have been expected, the ramifications of Article 8 have extended into areas that were surely beyond the imagination of its drafters. It has now been established that this Article must protect such diverse things as the right to change your surname and the right to respect for ancestral burial sites. The Court has determined that “private life” includes life at work, in an office, and that the term “home” includes office or business premises (a decision which the Court’s own judgment proudly described as “building on its dynamic interpretation of the Convention”). The right to respect for a person’s home now covers a gypsy who is living illegally on non-residential land, having been explicitly denied official permission to reside there. The right to respect for one’s private life is now interpreted to mean that an agency of the state should not store information about one’s business activities; it also prohibits the state authorities from filming people covertly inside a police station. Private and home life is violated when a person is affected by toxic fumes from a nearby factory, and the right to respect for a person’s home encompasses the “quality of home life,” which is violated by traffic noise. (In one case, a dissentient judge went so far as to propose that interference with television reception was also a violation of this human right.) The right to respect for family life now includes the right of prisoners to conceive children by artificial insemination. And the right to respect for private life now contains within it a right to “physical and moral integrity.” That phrase appears nowhere in the wording of the Convention; it seems that, in a sort of conceptual fast-breeder reactor, the generative abstractions of that text are now generating even more generative abstractions by themselves.

Naturally, defenders of this jurisprudence will want to say: “All judicial interpretation works like this; laws are stated in general terms, and interpretation then fills in the specific details, as the laws are applied to particular cases. So what’s unusual here?” To which there are two answers. The first is that normal laws are drafted in an ongoing legal system in terms that are already rich in established meanings within the traditional law of the state, whereas this was a deliberate attempt to set up a new jurisprudence almost from scratch, with a bare minimum of open-ended abstract terms (“life,” “private and family life,” “freedom of thought,” and so on). Secondly, normal laws are subject, immediately or ultimately, to democratic political control: they can be amended or repealed. The closest thing in the Anglophone world to this European human rights law is the jurisprudence arising from U.S. Bill of Rights; but Amendments to the U.S. Constitution are the results of a political process, and if insuperable problems arise from one of them, it can be repealed. European human rights jurisprudence is beyond any such control.

This is the basic problem that must be borne in mind when people point to the beneficial effects of human rights law. That domestic legislation has been improved by this sort of superintendence may well be true, on many issues (though not, surely, on all). But was it necessary to use human rights law to achieve all these effects? Could not—should not—ordinary domestic legislation deal with such matters as whether citizens should be protected from covert filming within police stations? When defenders of the human rights regime say that domestic legislatures have simply failed to deal with many issues, and praise the fact that the magic wand of human rights law can create legal rights and duties whenever required, they should remember that this marvellous mechanism operates at a price: in imposing one fixed solution, it removes democratic choice not only at the present time but forever, as it rules out any future attempt to amend or repeal. This is bad for democracy; it may also be bad in itself, as we cannot be sure, in every case, that that one fixed solution is the objectively correct one. There have been very few reversals in history of this European Convention jurisprudence, and in every case they have been changes that moved the law in one direction only: extending the scope of human rights. All that gets reversed is a restriction on the scope of the law—for example, by broadening the type of relationship that qualifies as a “family,” so that some that were excluded are now included; by shifting from saying that marriage applies only to people of opposite sexes to saying that it includes people of the same sex; or by moving from a rejection of the concept of “indirect discrimination” to an acceptance of it. Overall, this jurisprudence is not for turning.

Defenders of the European Court of Human Rights like to claim that its approach is nevertheless quite flexible, thanks to the doctrine, long established in its rulings, of a “margin of appreciation.” “Appreciation” here is a mistranslation of the French appréciation, meaning “appraisal” or “assessment”: the idea is that the authorities of a particular country should have some latitude to make their own assessment of what is suitable to their national conditions. Such a margin is allowed by the Court at Strasbourg, but in different degrees for different rights. You might expect it to operate on the principle that the more important the right, the smaller the margin for national variation, but it does not work like that. Take the issue of abortion, for example, which “engages” (to use the legal term) the right to life. That right is one of the most important of all; yet on this issue the margin is huge, with the Court allowing abortion in many countries but permitting Ireland to ban it altogether, except when the mother’s life is directly at risk. (Incidentally, those who think that the doctrine of human rights is an objective science should compare the documents that declare it so authoritatively: another of the regional agreements, the American Convention on Human Rights of 1969, explicitly states that a person’s right to have his life respected begins at conception.) In reality, the doctrine is not based on any deep legal or theoretical rationale; the “margin of appreciation” is nothing more than a pragmatic recognition of the fact that there are large differences between the practices of various states. If countries happen to agree, there may be no margin; if they disagree, there sometimes is. Yet it should be noted that in several cases, the fact that a country was in a minority of one on an issue (Turkey, in legally imposing the husband’s surname on a married woman; the United Kingdom, for letting the police retain indefinitely the fingerprints and DNA samples of suspects) has been used by the Court as an argument for disallowing that country’s disputed practice. We may sense a certain irony here, if we recall that one of the strongest justifications put forward for human rights law was that it would protect against the tyranny of the majority.

The other way in which this jurisprudence, on the face of it, allows some freedom of decision-making for national governments and legislatures is in the operation of the “limitations,” the restrictive conditions attached to the individual Articles of the Convention. Again, however, there is no master-theory at work. Some Articles have very few limitations, while others have many. Article 8 (quoted above) gives quite a long list: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country . . . ,” and so on. Here are some definite criteria, such as being necessitated by national security, which you might expect a government to be best placed to judge. Yet inevitably the Court ends up second-guessing the national government: for how can it decide if a country is going beyond what is needed in the interests of national security, without forming its own substantive judgment of what is in those interests? And the Strasbourg judges have gone much further than that: in one notorious case in 1996, involving the killing by British special forces of three IRA agents who were thought to be on the point of detonating a car bomb, they even made their own judgment—adverse, though inevitably amateur—about what the tactics of the security services had been at the operational level.

Sharp-eyed readers will have been struck by one of those “limitations” in particular, the phrase “necessary in a democratic society”—a wording that also recurs in Articles 10–12, on freedom of thought, freedom of expression, and freedom of assembly. Might this, at last, be the liberating device that could clear a space for responsible national legislatures to make their own decisions? Alas, it has never been used to any such effect. The jurisprudence of the Court pays little attention to this phrase, and when it does so it mostly interprets it as a reference to the values of pluralism and diversity. Important though those values are, what this suggests is that the adjective “democratic” here has been through the hands of conceptual bomb-disposal experts: the dangerous political substance of democracy itself has been carefully extracted and set aside.

In the United Kingdom in recent years, high-profile issues such as prisoners’ votes, or the frequent decisions by judges to block the deportation of violent foreign criminals on the grounds that it would breach their right to a family life, have made the public increasingly sceptical about the entire European Convention. One poll in 2014 indicated that 41 percent would like the United Kingdom to withdraw from the Convention, while only 38 percent were in favor of remaining within it. In its election manifesto for 2015, David Cameron’s Conservative Party proposed not withdrawing from the Convention, but repealing the 1998 Human Rights Act which had directly incorporated the Convention into U.K. law. That policy is now in doubt, thanks not only to a hysterical protest campaign against it (Shami Chakrabarti, the director of the civil rights group “Liberty,” called it “the gravest threat to freedom in Britain since the Second World War,” even though it would merely turn the clock back to pre-1998 normality), but also to divisions within the Conservative Party. To complicate matters further, the European Union has created its own “Charter of Fundamental Rights,” which duplicates and embellishes the rights of the Convention; and the latest treaty governing the European Union (the Lisbon Treaty, which came into force in 2009) provides that the European Union itself will become a signatory to the Convention, thus making the latter’s jurisprudence doubly binding on the European Union’s member states, all of whom are individual parties to the Convention already. It is one of the more delicious ironies of modern politico-legal history that in late 2014 the European Union’s own supreme court rejected the draft agreement for the European Union’s accession to the European Convention, on the grounds that being subject to supervision by an external human rights court would violate the autonomy of E.U. law. The violation of the autonomy of national law, however, continues apace in matters both large and small.

So what can be done? Here is one positive suggestion. At present, when the United Kingdom’s Supreme Court finds that a British law conflicts with the jurisprudence of the European Convention, it issues a “declaration of incompatibility.” Why not also give it the power to issue a “declaration of justified limitation of democracy”? The judges would thereby declare that, in their opinion, the particular right in question was of such vital importance that, to prevent tyranny, it would justify limiting the power of a democratically elected legislature to decide what the law should be. This declaration would, like the declarations of incompatibility that are currently issued, have no binding power over Parliament. But it would surely have persuasive force, not least because it would be a very rare occurrence. In the great majority of cases—prisoners’ votes, filming inside police stations, and so on—no such declaration would be made. And the point of this proposal is that by not making such a declaration in most cases, the judges would have a tacit way of expressing the view that, even if enforcing the provisions of Strasbourg’s human rights law might do some good in a particular case, a more significant good for society as a whole could be achieved by allowing people to live in a properly functioning democracy. It is a strange reflection on the world we now live in that the value of democracy itself may need to be preserved by such a device, smuggling it through the backdoor of a legal procedure. Yet something must be done, if we are not to lose all sense of the proper relationship between human rights law and responsible government. International human rights conventions can do real good when they act as ultimate safeguards; but when they begin to take over from ordinary democratic decision-making on a whole range of everyday matters, it is inevitable that they will do real harm to democracy itself.