By Sam Bidwell.
Rediscovering our common law culture of political freedoms is a battle worth fighting says Sam Bidwell.
For human rights lawyers, history starts in 1948. Amidst the ruins of post-war Europe, some of the continent’s brightest legal minds gathered at the Hague to lay the foundations of the European Convention on Human Rights.
The commendable aim of these men was to create a system of immutable minimum standards which aimed to prevent the nations of Europe from slipping into the pattern of tyranny which had characterised the preceding centuries.
The Convention would be signed in 1950 by the nations of Europe, coming into effect in September 1953. Its eighteen articles set out a series of basic rights – protecting family life, prohibiting torture – carefully considered to allow for reasonable disagreement over their implementation.
Over time, this initial kernel grew and grew, the definition of rights expanded and amended in order to produce the right outcomes in specific cases. The uncontroversial Article 8 right to ‘private and family life’ has been expanded in recent years to block stop and search powers and to mandate abortion access.
The uncontroversial Article 8 right to ‘private and family life’ has been expanded in recent years to block stop and search powers and to mandate abortion access.
Regardless of one’s own ethical stance on stop and search, or on abortion, it is important to recognise that these are political questions, subject to differing interpretations within and between countries. As the recent overturning of Roe v Wade in the United States should teach us, civil liberties cannot be permanently guaranteed by the judiciary. They must, as far as possible, enjoy political support, and social assent. Equally importantly, the implementation of those liberties must be nuanced and situational, driven by pragmatism and subjectivity.
And yet the trend, time and again, has been towards a more rigid, objective interpretation of fluid, subjective rights, precluding dissent or disagreement. Certain ethical or moral stances, we are told, are simply incompatible with human rights – even if the ECHR itself gives no indication of this fact. It can hardly be supposed that the architects of human rights law considered abortion to be a fundamental facet of Article 8; in 1953, just two European nations, Sweden and Iceland, allowed the practice. In truth, the modern Article 8 is the brainchild of Strasbourg judges, underpinning by their personal moral convictions, and designed to expand ad infinitum in reflection of the liberal zeitgeist.
In truth, the modern Article 8 is the brainchild of Strasbourg judges, underpinning by their personal moral convictions, and designed to expand ad infinitum in reflection of the liberal zeitgeist.
Despite this, we are told that the current interpretation of our human rights, whatever that interpretation may be, is cast-iron. To disagree would, apparently, be to flirt with tyranny. The same thing will be true of the next interpretation, and the interpretation which follows that.
Closer to home, the Human Rights Act 1998, brainchild of the Blair government, entrenched these ever-expanding conventions in domestic law. Critically, Section 3 placed an obligation on courts to interpret legislation and ministerial orders “in a way which is compatible with the Convention rights”. In other words, regardless of its original intent, every Act of Parliament and every ministerial statement must be twisted, reinterpreted, and reformulated in order to remain compatible.
And today, we reap the rewards. The inclusive vision of the original draft has given way to a set of prescriptive dogmas which intrude on the right of Parliament and Government to make laws in the national interest. One might be inclined to accept Article 8’s new protection for abortion; after all, abortion enjoys broad political and social support in the UK.
However, the court’s judgment on that question is the thin end of the wedge. Human rights have been weaponised in recent years to block protections for veterans, to prosecute members of the armed forces for split-second decisions taken on active duty, and to prevent the Government from implementing its Rwanda offshoring scheme, despite the fact that similar schemes exist elsewhere in Europe. It is human rights law which mandates that immigrants be allowed to bring their families – often in large numbers – to the UK, resulting in a staggering 171,159 dependant visas being granted in 2021 alone. Since 2005, the ECHR has forbidden bans on prisoners being allowed to vote. It is pro-immigration, pro-prosecution of our armed forces, and fundamentally anti-democratic.
Human rights have been weaponised in recent years to block protections for veterans, to prosecute members of the armed forces for split-second decisions taken on active duty, and to prevent the Government from implementing its Rwanda offshoring scheme.
Yet where human rights law is needed most, it proves least effective. Today’s ECHR boasts signatories such as Azerbaijan, a country described by Freedom House as undergoing an “extensive crackdown on civil liberties”. Until its expulsion in 2022, Russia boasted equal membership of the club. In the very same year, the country was estimated to be holding 558 political prisoners. Unsurprisingly, the finger-wagging of hectoring Strasbourg judges had little effect on a country willing to jail opponents of the regime.
It hasn’t always been this way. Contrary to the mewling of some, history did not begin in 1948. Britain has a long and storied legacy of individual liberties balanced against the needs of the community and upheld by our political constitution. It did so without the aid of a rigid set of conventions, and without placing significant fetters on Government action.
Since Magna Carta in 1215, the English have enjoyed freedom from unlawful detention, freedom from retroactive punishment, and the right to be tried by one’s peers. Sir Edward Coke, writing in the 1590s, claimed freedom of speech as an “ancient custom” in England. In 1628, the Petition of Right reinforced the prohibition on arbitrary detention, and in 1689, the Bill of Rights outlawed ‘cruel and unusual’ punishment’. The case of Entick v Carrington, 1765, formally established the right against arbitrary search and seizure.
These strands, many and varied, pulled together to form a rich tapestry of individual liberties, which lay the foundations for Britain’s global success. Rights enjoyed in England for more than eight-hundred years have, in many cases, emerged in continental Europe only in the past fifty years.
Rights enjoyed in England for more than eight-hundred years have, in many cases, emerged in continental Europe only in the past fifty years.
Crucially, these rights were protected by the political constitution, not by judges. The simple brilliance of the English – later British – constitutional settlement was its understanding that a robust political culture is the only reliable safeguard of personal liberties. There was an expectation placed upon the monarch and Parliament that they would uphold the rights of the British people, as a precondition of popular assent to their rule. In turn, Britain led the world for centuries on the promotion of civil liberties and personal rights.
We understood then that our personal liberties are guaranteed by good governance and by a liberal political culture. We did not need the comforting fiction of immutable rights enforced by some higher power.
Yet those days are gone. Today, we outsource protection of our fundamental rights to a prescriptive set of rules, created and interpreted by judges. Mostly, this body of rules exists to prevent Government from exercising its authority, particularly around contentious issues such as immigration. The muscle that the British body politic was once so adept at exercising has atrophied. One need only look at the widespread acceptance of iron-fisted Covid lockdowns to shatter the myth of the freedom-loving Anglo-Saxon.
One need only look at the widespread acceptance of iron-fisted Covid lockdowns to shatter the myth of the freedom-loving Anglo-Saxon.
It doesn’t have to be like this. The present system of human rights law in the UK is a product of the past few decades and was by no means inevitable. We must not let advocates of the present system fool us into thinking that rule by judicial fiat is set in stone. It can, and should, be changed to suit this country’s political needs, a move that should be coupled with a rediscovery of the tradition of common law rights.
In doing so, we would give recognition to broad disagreement over how our rights are vindicated, and to the fact that political liberties must not constrict a Government’s ability to act in the interests of the nation as a whole. We would create a culture of public and political engagement on ethical questions; the question of ‘can I do this?’ would be replaced by the far preferable ‘should I do this?’.
How can we rediscover our common law culture of political freedoms?
The Government would do well to repeal or amend the Human Rights Act 1998, curtailing the ever-expanding body of obstructionist human rights laws, while bolstering the enforcement of rights at common law. It should also seek to redefine judicial review, exempting all but the most procedural matters from judicial interference. It must be bolder about opposing the judiciary’s apparent right to obstruct the exercise of prerogative powers, and to deliberately misinterpret Acts of Parliament.
For those used to the Blairite constitutional order, this might seem like a daunting shift in focus – but these are not radical steps. The radicalism came in 1998, with the undoing of a millennia old constitutional settlement. Instead, a rediscovery of politically vindicated rights would be a return to the historic norm, and one which would recognise the practical complexity of liberties. It would allow democratically elected politicians to govern unfettered, and encourage the public to make normative value judgments about whether Government is respecting their freedoms.
It will also require immense bravery. Critics will be loud, and opposition fierce, but the battle is well worth fighting. Get this right, and Britain will once again stand out as a model of prudential, pragmatic freedom.
Sam Bidwell is a writer and Senior Parliamentary Researcher for Bim Afolami MP Member of Parliament for Hitchin & Harpenden. Follow Sam on Twitter here.
