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The Tories Don't Understand Human Rights

09/10/2014 16:45 BST | Updated 09/12/2014 10:59 GMT
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We have human rights because we are human, not because we are British.

Forced to abandon NHS bashing for the sake of the election, David Cameron needed to feed the right some red meat. He chose the European Convention on Human Rights, promising to repeal the Human Rights Act, which allows English judges to incorporate the dicta of the Strasbourg court into their rulings, and allow Parliament to ignore the European Court of Human Rights. This is more than simply wrong; it shows a fundamental failure to understand of the role human rights play in international law and politics.

The international law of human rights is based on the premise that there is something fundamentally valuable about each individual human. In this light Cameron's idea of a "British Bill of Rights" seems absurd. People are not inherently valuable because they are British or French or Afghan. We are valuable because we are human. For this reason that the ECHR applies to British troops fighting abroad. To suggest that people should lose value in our eyes because they are non-European is an attitude redolent of the 13th Century not the 21st.

The ECHR is itself based on the Universal Declaration of Human Rights. It doesn't invent "European Rights". It allows citizens of European states direct access to universal rights. It's worth noting that the UK would remain bound by a plethora of international human rights conventions even if it were to succeed from the ECHR (as the Conservatives threaten). The government's legal obligations wouldn't fundamentally change; they would just get more complex.

In practice human rights law protects the vulnerable from the powerful. This is why a bill of rights decided purely by the parliamentary majority is so dangerous. Human rights act as a check on the majority. Courts should make decisions (such as giving prisoners the vote) with which most of us disagree. If they didn't they wouldn't be a check on the majority.

This is important because, in a democracy, the majority should be able to change. If the power of a majority is not checked then there is nothing to stop that majority taking steps to make itself permanent. Cameron is asking us to trust to powerful to set limits to their own power. For a man who supposedly venerates the Magna Carta he sounds suspiciously like Prince John.

Cameron has also failed to understand that human rights are based in law, not politics. Chris Grayling is right to say that Churchill would not recognise the ECHR as it is now construed. But, as a man who understood the law, Churchill would not have expected to. Law evolves as society evolves. To suggest that the framers of the ECHR had some sort of divine insight allowing them to perfectly capture the value of humanity is absurd. They set down principles to be developed by future generations.

Cameron would, no doubt, respond by arguing that they should be developed by English, not foreign, judges. But this misses the point. Human rights are not English. English judges have no better insight than judges from Azerbaijan. The best we can do ensure the judiciary is cosmopolitan. Although the evolution of rights can never be perfect, it will at least then be shaped by as wide a range of perspectives as possible.

In any case, if Cameron were to put rights solely into the hands of English judges, they would still make decisions the government does not like. The point of independent judges is that they can disagree with the government of the day. Unless Cameron intends to make judges responsible to Parliament he has to accept that sometimes other people get to disagree with him.

The most ridiculous argument the Conservatives make is that the ECHR undermines British sovereignty. The idea of unlimited state sovereignty is an 18th century fiction and Cameron knows this. He is only too happy to have his policy dictated by foreign powers when he is stripping rights from workers in order to match the labour standards set by Korea or China.

When they helped establish the ECHR, Churchill and his (Conservative) Attorney General, Sir David Maxwell-Fyfe, struck a more enlightened form of the bargain every state strikes when it eschews isolationism. They agreed to be bound by international norms on the condition that Britain had a hand in creating them. Instead of a treaty, requiring endless international summits to adapt, they established a court to ensure constant evolution.

It should be a source of pride, not rage, that we, as a nation, hold ourselves to the highest standards when it comes to respecting the inherent value of the human. The idea of human rights embodies the principal that people are more important than ideologies. If he hopes history to remember him with any fondness, David Cameron would do well to remember that maxim.