Although Labour has made a big fuss about the Human Rights Act, those rights are subordinated to the interests of the capitalist state
Whenever the Labour government are challenged for their uncanny resemblance to the Tories or for their authoritarian political tendencies, their representatives declaim loudly how they are the government devolving power to Scotland and Wales; that they are the government that has reformed the House of Lords; and that they are the government that has passed the European Convention on Human Rights into British law so that, for the first time in British constitutional history, the subjects of the United Kingdom now have individual “rights”.
Historically, unlike many of the European constitutions (and that of the USA) established in the 18th and 19th centuries, from first principles, under the influence of Rationalist philosophy, the British constitution has not guaranteed “rights” to its subjects. Rather, it has been understood that people were free to do as they chose, so long as no law existed to prevent it: a system, more or less, of negative rights. The documents that the pompous like to trumpet regarding the British constitution—the Magna Carta and the Bill of Rights—actually only serve to establish the rights of certain structures of state, specifically Parliament and the monarchy, rather than Universal Rights of Citizens. Traditionally, the concept of “convention” has been elevated against European style constitutional rights.
This line of constitutional thought was first propounded by Edmund Burke, the 18th century dread opponent of the French revolution, whose thought now forms a bedrock of the modern Conservative Party. As against this conservative approach to constitutional evolution, the Labour Party has long had elements within its ranks who have propounded the Enlightenment model of a rational constitution, often terming themselves the progressives. Despite the apparent, and in most cases actual, accommodation to Tory fiscal and economic policies, the rationalist elements have retained enough centrality and strength to enable the Human Rights Act to be passed. This has been largely made possible by the fact that this law will be marginal at best to economic considerations, and has the advantage of presenting a genuine difference in approach between Conservative and Labour.
The Act itself was passed back in 1998, to relatively little attention. Recently, the Tories attacked Cherie Blair for an article of hers discussing the ramifications of its implementation this October, and implicitly attacked the Act itself, as a litigant’s charter. What the Act does is pass into British law the European Convention on Human Rights, a treaty signed up to by Churchill. Although Britain has long been bound by its strictures, it has not been enforceable in British Courts, but only through the European Court of Human Rights in Strasburg. The Convention outlines the basic rights to be expected by the citizenry of the signatory countries.
The rights outlined therein are the usual fare of liberal politics—a right to freedom of association and expression; a right to life; freedom from torture; a right to due processes in law. As such it has little to distinguish itself from the fabled American Bill of Rights—save perhaps the absence of a right to silence and of a right to bear arms. A more significant difference, however, is that the terms of the Convention are not laid out in as much an absolute manner as those in America. Article IV posits the “Prohibition of Slavery and Forced Labour.” Within that article, though, subsection 3(b) states that “any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service” shall be exempted from the rights. That is, we are to have freedom from forced labour, except . . . er . . . when the states decides that we don’t.
Indeed, the whole Human Rights Act is riddled with exceptions—the rights to freedom of association, to privacy in family life, and to freedom of expression, are all limited by the caveat:
“No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
That is: these rights shall not be infringed unless the state wants to. Further, far from being universal, the various political rights are deemed not to be extended to “aliens” by Article 16.
Illiberal agenda
The Labour Government has, simultaneously to the activation of this law, provided us with a stunning example of its contradictoriness (as well as showing Labour’s real illiberal agenda), the appropriately named “Terrorism Act”. The Act defines as terrorism any act of which “the use or threat [of] is designed to influence the government or to intimidate the public or a section of the public, and the use or threat [of] is made for the purpose of advancing a political, religious or ideological cause” that (a) involves serious violence against a person; (b) involves serious damage to property; (c) endangers a person’s life, other than that of the person committing the action; (d) creates a serious risk to the health or safety of the public or a section of the public; or (e) is designed seriously to interfere with or seriously to disrupt an electronic system”—a list of actions that are illegal anyway.
The Terrorism Act limits expression and association. The Act makes it an offence to belong to an organisation engaged in such activities, to materially aid such an organisation, to attend a meeting at which a representative of that organisation speaks (a meeting being defined as either a public or private event at which three or more people are in attendance), or to wear an item of clothing so as to “arouse suspicion of membership”. All of which carry sentences of up to ten years. Further, it is made an offence to not inform on someone for a breach of those sections, an offence which carries a sentence of up to 14 years. The Act makes it illegal to be in possession of information which could be useful for terrorist purposes. To enforce these draconian measures, police officers are able to arrest and detain someone suspected of contravening this Act for up to 7 days before charge.
Although many of the provisions of this Act are old news—indeed, they mostly come from the old Prevention of Terrorism Acts, they do represent a significant new change in that for the first time the Act applies to the whole of the UK, and for the first time is permanent rather than temporary legislation. The limitations it prescribes drive a coach and horses through those given by the Bill of Rights, but are allowed to be justified by the national security exemptions (certainly, British judges are more likely to accept such considerations than the Judges at the European Court, another reason, perhaps, for passing the rights into British law).
Further evidence of Labour’s illiberal tendencies can be seen in the Regulation of Investigatory Powers Act, recently passed. Although intended to provide privacy rights for employees sending e-mails, it also imposes an obligation on firms engaging in e-mail service provision to install equipment in order to enable the security services to intercept e-mail. Further, the Act makes it an offence not to provide an encryption key (such as a password) in order to be able to access systems that have warrants served upon them. This would carry a two year jail term, as compared with the five years the Act imposes for disclosing that an interception warrant has been issued. Unsurprisingly, the businesses have objected to both the privacy provisions and the imposition of the costs involved. Some business groups have expressed concerns with regard to commercial confidentiality and the power of the state to snoop.
“Human Rights” have long been a feature of the capitalist programme. Capitalists’ business needs have required freedom of information flows, freedom of movement, and the freedom to buy and sell labour power. Having experienced the serious effects of arbitrary power on business—in terms of aristocrats refusing to honour contracts, and engaging in forced loans—the capitalist class has always been keen on propounding “the rule of law”. This means, however, that any rights brought about by the capitalist class will always be rights conditional upon the material practice of their class interest, and any abstract rights that get in their way will be overridden or ignored.
“Rights” are an ethereal IOU of freedom that compensates for the absence of practice on the ground. You don’t need a right to silence if there is no agency trying to incriminate you, freedom of speech is meaningless without access to the public space to exercise it. Rights on paper are as meaningless as a bankrupt’s promise to pay, endlessly on offer but never obtainable. In a society that has such utter contempt for human existence, little else is to be expected. Only a society based on the co-operative equal worth of all human beings can guarantee the realisation of that promised human worth.
Pik Smeet
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