From the November 2014 issue of the Socialist Standard
The Tories are hard at work trying to reaffirm their reputation as the Stupid Party. In an imbecilic and shambolic fashion, they have announced they intend to repeal the Human Rights Act (HRA) and replace it with a British Bill of Rights. Even further, they are threatening to renounce the European Convention of Human Rights (ECHR) and withdraw from the treaty. Noticeably, they only sent their press release announcing the move to the Fleet Street tabloids, ignoring the broadsheet press. The draft document was then found to be error-strewn and ill-thought out.
When their document became available legal minds across the internet immediately began to pick it apart, showing up inaccuracies and ignorant comments scattered throughout. It claims, for instance, that the European Court of Human Rights has banned whole life sentences: when in fact all it did was say that there must be a mechanism for review of the sentence (and, indeed, the British Supreme Court has since said it believes sufficient such structures are already in place).
It has been pointed out that narrowing the ability of courts to read legislation in such a way as to make it compatible with human rights (as they are obliged to do under the HRA) would lead to courts striking down legislation more often. They also promised to stop British courts being bound by Strasburg rulings, when they are already not. Just as all courts have always done, they listen to rulings and reasoning from other jurisdictions and use it as part of their own reasonings.
It has also been suggested that the Westminster Parliament alone might not have the power to repeal the HRA or withdraw from the ECHR, because the devolved bodies for Scotland, Wales and Northern Ireland have had these documents incorporated into their foundation (in the case of Northern Ireland, this is underpinned by an international treaty).
Former Attorney General, Dominic Grieve, who has been booted out of the government for opposing this policy, has written in Prospect Magazine pointing out that since 1815 the UK has signed up to over 800 treaties that commit to some sort of international arbitration, and the ECHR is just one of those. Far from the EHCR undermining political sovereignty of Britain, it in fact entirely relies upon the Sovereign British state entering into and agreeing to uphold treaty obligations.
The power to make treaties is an executive power (or, in the byzantine world of the British state, a matter of Crown prerogative). It is thus part of the anti-democratic aspect of the state. The Prime Minister and Foreign Secretary can negotiate, practically in secret and bind the state in the eyes of the world. Necessarily, this limits what Parliament can and can’t do since it means that Britain cannot pass legislation that would break its obligations to other countries. This is the basic means by which Britain has entered into the European Union, and all European Law is actually a treaty obligation which is given effect by the British Parliament passing compatible legislation.
As Grieve notes, ‘in promoting the Convention and adhering to it, we have followed a long tradition that has seen our national self-interest bound up in promoting international order.’ That is, British capitalists benefit from promoting international order and transparent processes to protect their property rights and investments.
The rights of property
The ideology of capitalists has always been based around contract, as they seek to mediate both competition between themselves and against other classes in society. In particular, in their battle with the absolutist states of feudalism they sought protection in the language of rights to protect their property and business interests. In today’s world, they still have to protect themselves from arbitrary expropriation by state actors (and also from other capitalists reneging on their obligations). The interest of big British business depends on a stable rights-based world, where contracts can be enforced. We need only look at Russia, where rival groups of capitalists have used the state to imprison their rivals (and indeed, have frequently resorted to British courts to try and resolve their differences).
Codified human rights are a way of ensuring that the state cannot be used by rival factions (and also so that state actors can know what they are supposed to be doing). That is the function of rights within the ruling class. Rights, though, also form a sort of peace treaty between the ruling capitalist class and the working class. Rather than fight in the ditches over every single scrap, rights allow us and them to let routine matters of conflict be resolved. Their state gets to operate in a way which is considered broadly fair by the wider population. When it doesn't, then open fighting resumes (usually in the form of riots, strikes and civil disruption, but also at the ballot box). The enunciation of civil rights and their enforcement is a reflection of the balance of class power.
This can be seen in the history of every significant document of rights. The Twelve Tables of Rome, the Muslim Constitution of Medina, Magna Carta: all were created following a period of civil strife as a means of putting an end to the present conflict (and also leaving the existing social structures in place). What this means in practice is that rights are not essential, universal or transhistorical, they are always the outcome of the social relations in a particular society and the relative strengths of the class forces to enforce them. The 1936 constitution of the USSR was touted as the most democratic on Earth (as, indeed it was, on paper). The fact that it was completely ignored and useless in practice was down to the lack of any independent capacity of the population, and the working class, to demand it be lived up to.
Human Rights are an outgrowth of both the competitive class and social division of society and the existence of the state. Just as people who do not keep lions do not need a set of written lion safety manuals, so a society of free individuals without a state will not need a written set of state safety manuals. Instead of rights on paper, we would have the practical fulfilment of human needs with the equal access to sufficient democratic power to secure those needs.
The Tories know that this is just bluster and window dressing. They cannot effectively remove the rights in the ECHR. The games they are playing are just symbolic efforts to shore up a right-wing coalition. The number of times they fulminate against Traveller sites and planning laws in their document on the British Bill of Rights shows that they are mostly interested in addressing the grievances of people who are big fish in small village ponds (the sort who may vote UKIP because they don’t have big businesses that rely on international stability).
At most, they are seeking to bring control of the law back into the hands of British judges, who share cultural and family relations with the domestic capitalist class, and can be relied upon more than foreign judges to support the interests of the ruling elite. These judges, though, have already shown a willingness to incorporate human rights language wholesale into common law, and have made significant rights based rulings without reference to either HRA or the ECHR.
We should not let ourselves depend on these judges for our freedoms, though. We can defend ourselves and protect what freedoms and rights we have best by building our own movement for socialism and pursuing the class struggle through our unions. We can only ever have the rights we fight for and can defend.