The right to remain oppressed

Human Rights Act aids state attacks on freedom and is effectively a tool of social control

Barbara Hewson

Justice secretary Chris Grayling and the home secretary recently sparked a debate about the value to British society of the Human Rights Act 1998.

This initiative is timely, despite the outcry it has provoked in some quarters. This act has generated acres of well-meaning guff, much of it emanating from lawyers and judges. But what is it good for?

In 2010 economist John Kay published a devastating critique of the human rights industry in the Financial Times entitled ‘Not all rights should be defended to the death’.

In this he speaks of the degradation of rights: “In the past decade we have seen the wider and wider use of the language of rights combined with a significant erosion of traditional and truly fundamental rights […] The extravagant assertion of human rights by lawyers chasing briefs has created an environment in which many people treat the phrase with cynicism or even amusement. The misuse of the language of rights undermines the status of all rights. We should create rights sparingly, and defend them tenaciously.”

My objection to this act is that it creates not rights as conventionally understood, but a tool of social control. As barrister Jon Holbrook has argued, far from protecting us against erosion of liberty (as promised by Labour) it is inherently authoritarian, aiding state attacks on freedom.

Holbrook explains the distinction between human rights and civil liberties: “Civil liberties are directed at curtailing the state’s power, whereas human rights claims invariably seek to invoke more state power. Civil liberties aim to protect individual freedom whereas human-rights claims invariably aim to regulate behaviour.

Civil liberties are premised on a belief in human rationality, whereas a human rights culture and the regulation that flows from it are invariably premised on the belief that individuals are vulnerable and not resourceful.”

Time and time again, courts are reduced to declaring why rights are not effective: they produce elaborate justifications for why state interference with rights is justified, invoking ‘proportionality’. This enterprise is doomed.

The spectacular ineffectiveness of human rights in practice can be seen in cases such as that of Ms E, the anorexic the Court of Protection ordered to be fed against her will last year, even though the medical evidence was that this could kill her. The prognosis for recovery was as low as 10-20 per cent.

This shows the family courts’ mania for detention and forced treatment, a dismal and anti-humanist trend persisting for over two decades. But note how the court had no problem overriding Ms E’s Article 3 rights, though the right not to be subject to torture and degrading treatment is, supposedly, non-derogable. Ms E’s state-appointed lawyers did not appeal. Quelle surprise.

One does not have to be unduly rights-sceptic to conclude that if someone like Ms E cannot fend off unwanted state intervention of a foul and burdensome kind, her ‘rights’ are not worth having.