Comment: Human rights are just a proxy war for the political class

This morning Chris Grayling unveiled plans to replace the Human Rights Act with a UK bill of rights.  Tories love it but the human rights lobby loathe it. During his conference speech this week David Cameron insisted that "we do not require instruction from judges in Strasbourg".  The human rights lobby, led by Liberty's Shami Chakrabarti, described his argument as shameful and even claimed Cameron and Isis held some similar views.

The sparky nature of this debate has nothing to do with a clash of ideas because there isn't one.  Both the eurosceptic bill of rights lobby and the europhile human rights lobby believe strongly in human rights.  The former Conservative leader Michael Howard made that point when noting on a Conservative party press release that "the argument is not about human rights, to which we all subscribe".

This is a dispute between political organisations that have lost touch with the electorate.  Because these organisations can no longer win popular support they content themselves with shoring up their own narrow bases of support.  The Tories claim that terrorists, serious criminals, illegal immigrants and travellers have too many human rights and that British armed forces overseas have too few.  These problems will supposedly be ironed out with a British bill of rights, which will make rights conditional on responsibilities.  This knocking of terrorists, criminals, illegal immigrants and travellers plays well with Tory grassroots but it is scarcely a programme for enthusing the rest of society.

In the other camp are supporters of the status quo who get excited about the Human Rights Act and the power it has given to judges in Strasbourg and London since coming into force in 2000.  They are angry at the way the British bill of rights is used to weaken the influence of the European Court of Human Rights in Strasbourg.  These arguments play well with campaigners, quangos and many lawyers who tend to align themselves with the Labour party.  But beyond the confines of this narrow constituency few people have ever been enthused by the notion of votes for prisoners, the deportation of Abu Qatada or the sacking of Christians for their views on homosexuality.

The human rights debate is best described as a skirmish between those with traditional Tory values, who tend to be eurosceptic and concerned about the influence of 'foreign' courts, and those from a middle class cultural elite, who welcome an expansion of judicial power – European and British – and like the human rights status quo.  This is a skirmish that gets its protagonists very excited but it is a debate that merely serves to highlight the inability of today's politicos to have influence beyond their existing and shrinking constituencies.

In reality, human rights have become an issue in British society precisely because politicians have lost the ability to engage with the public.  The essence of a human right is that it is beyond argument: it is supposedly something inalienable that pertains to an individual because of his humanity.  All the politicians had to do in 1998, when the Human Rights Act was passed with cross-party support, was sign up to a set of abstract principles such as 'respect for private and family life' and empower judges to decide what those principles meant.  (A task they have performed over the last 14 years with increasing enthusiasm.)

Having allowed the abstract principles to be written onto the statute book the politician can avoid having to win an argument for any particular policy or outcome.  He merely has to proclaim the authority of human rights laws.  Winning the arguments on human rights is not the job of politicians; it's the job of lawyers.  In place of debates in the court of public opinion there are submissions by learned counsel in the court of legal judgment.  The argument is won not by winning hearts and minds on the basis of a political principle or vision; the argument is merely declared on the basis of judicial precedent mixed with a large measure of judicial opinion which is then presented authoritatively as being 'the law'.

The human rights discourse lets politicians off the hook.  It excuses them from having to engage with the public or from formulating and winning political arguments.  When it goes wrong, as it has, then the politicians have the perfect scapegoat: judges.  And they make even better scapegoats if they are judges sitting in a foreign court.

This is not the first time a serving government has blamed judges.  In 2008, the then home secretary, Jack Straw, told the Daily Mail he was "greatly frustrated" by the way the Human Rights Act was sometimes interpreted by the courts.  He noted that there was "a sense that it's a villains' charter or that it stops terrorists being deported".  Jack Straw even canvassed the idea of a British bill of rights and responsibilities.

Six years later the public's alienation from the human rights debate has increased.  But the politicians' desire to avoid any real debate about human rights remains the same.  Cameron, playing to his traditional Eurosceptic constituency, wants to replace "Labour's Human Rights Act", as he dubbed it, with a package of human rights rebranded as a British bill of rights.  And Labour, playing to its constituency of campaigners, quangos and lawyers, wants to stick with the status quo.

Here's a radical idea that could connect with the public: repeal the Human Rights Act, pull out of the European Convention of Human Rights and strip judges of their political role.  That way politicians just might feel the need to come forward with a few ideas, visions, policies and programmes of their own.  And instead of having arguments about whether a court of law has decided that prisoners should have the vote, we could have arguments about issues which were capable of enthusing the population as a whole.

Jon Holbrook is a barrister.  He was shortlisted for the Halsbury Legal Journalism award 2014.  Follow him @JonHolb. He is speaking at a Battle of Ideas debate in London next Monday entitled: From Magna Carta to ECHR: do we need a British Bill of Rights?

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