The Blog

Human Rights Can Be Hard to Grasp, But the Clue Is in the Name

Locating the ultimate arbiter of human protections beyond the control of the majority was the right thing to do, for this reason. The European Court may be irritating on occasion, or even invariably so, but that is how we know it is doing its job of disrupting the expedient majority view.

If everybody had agreed with him, the great Conservative William Wilberforce would not have had to dedicate so much of his life to the abolition of slavery in British realms. As it was, it took decades to convince parliament to outlaw the trade in human beings, and decades more before the Slavery Abolition Act itself could be passed.

Human rights are like that. People have to be reminded of them, and then prompted a bit more. Neither the Universal Declaration nor the European Convention would be necessary if everybody treated everybody else as they would wish to be treated themselves, but necessary they are.

The purpose of human rights legislation, therefore, is not to reassure us of what we already know, or allow us to bask in the comfort of our best intentions. It is there to challenge us in our comfort zone. When David Cameron felt "physically ill" at the idea of giving prisoners the vote his stomach was trying to tell him something more sophisticated than he realised. Doing the right thing can be uncomfortable at the best of times.

It is worth bearing this in mind when considering Conservative plans, trailed during the party conference and announced on Friday, to scrap the Human Rights Act. Commentators noted that the trail did not specifically mention pulling out of the European Court, but Friday's announcement amounts to not much less. Under Conservative proposals, "The European Court of Human Rights is no longer able to order a change in UK law and becomes an advisory body only."

The essence of human rights is that they take people as they find them. The clue is in the name: human rights. Whatever you do, whatever, your circumstances, whatever your condition, you remain human, with inalienable rights. Those rights cannot be traded, tit for tat, you harmed me so I can harm you. That's a natural human response when feeling angry or aggrieved, and the rule of law is there to steer us onto a nobler path.

When the ECHR determined that prisoners should be allowed to vote, it was drawing attention to their part as stakeholders in a functioning democracy. In taking upon itself the right to lock them up, the state is as accountable to them as to any other citizen. They must believe, for example, that if new evidence is forthcoming they will have a right of appeal. They must know that they will be humanely treated. They must know that their families back home are being fairly treated. A prisoner has no less a stake in the education of his son or the healthcare of his mother than any other father or son. Allowing him to vote is a powerful way of making that clear.

A more appropriate response to the judgement, therefore, would not have been to trash it, as so many so vigorously did, but to take the time to work out why, against all instinct and intuition, the court's long-considered verdict might actually be true. We have these drawn-out and expensive processes precisely to prompt us in a direction that we hadn't thought of, not to confirm us in our preconceived views.

Among examples that have been highlighted in the Tory proposals is that of travellers claiming the right to family life when in breach of planning laws. This may be annoying to some, but travellers have a way of life to which the planning regime makes all too few concessions, and the purpose of human rights law is not to make them conform, but to point that out.

If it weren't uncomfortable, frustrating and altogether thoroughly inconvenient to a local authority with a lot of angry voters on its back, human rights law would not be necessary. It exists above all to disrupt the path of least resistance, which routinely subjects the interests of a minority to those of an insistent and vociferous majority.

Under the proposals, travellers' rights in such a case are likely to fall foul of provisions limiting the use of human rights laws to the most serious cases. "The use of the new law will be limited to cases that involve criminal law and the liberty of an individual, the right to property and similar serious matters," the document says.

The right to live somewhere is a serious matter, if you don't have it. But by treating it as a detail of planning law, the Tory proposals will airbrush it out of the human rights frame. This, ultimately, is why they are so worrying. Human rights in Britain are not inalienable, after all, but survive only with the grace of a parliamentary majority that has the sovereign power to take them away.

Majorities, however, can look after themselves and their own, so human rights are not primarily a majority issue. It is minorities that need protection, many of whom, whether criminals, immigrants or jihadist sympathisers, are unattractive from the majority point of view. If the majority is able to decide what rights to accord them, it is scarcely surprising that they find themselves vulnerable to abuses of power.

Locating the ultimate arbiter of human protections beyond the control of the majority was the right thing to do, for this reason. The European Court may be irritating on occasion, or even invariably so, but that is how we know it is doing its job of disrupting the expedient majority view.

Disruption, in business, is the acknowledged route to progress. Old models such as video rental stores give way to downloads and online services such as Netflix. At first it's strange and uncomfortable, and then, before long, customers are taking it for granted. Human rights are much the same; they take getting used to. Britain, which abolished the Atlantic slave trade and whose lawyers drafted the European Convention, ought to understand this better than most. Sadly, some in Britain no longer seem to do so.