Human rights and human wrongs (2023)

From the December 2023 issue of the Socialist Standard

As the government considers whether to press on with yet another scheme that rides roughshod over human rights law, we must remind ourselves that rights are not really all they’re cracked up to be.

With the UK Supreme Court’s recent ruling that the government’s plan to deport refugees to Rwanda is unlawful, the attention of the political bubble in Westminster has turned once again to the Tory Party’s favourite bugbear, the Human Rights Act. Once again, the talking heads of British ideological conservatism have been trotted out to denounce the perceived pernicious influence of foreign judges, and call for the repeal of this allegedly unfair and un-British piece of legislation. The debate over the future of the much-maligned Act, which incorporates the 1950 European Convention on Human Rights into British law, has been brought to a boil in recent times by numerous pieces of government legislation which call into question its hallowed principles.

High-profile and divisive environmental protests by groups such as Just Stop Oil, and Britain’s largest wave of strikes since the late 1980s, have both resulted in repressive legislation, in the form of a Public Order Act and a Strikes (Minimum Service Levels) Act, both given Royal Assent in July this year. Before this, questions of human rights were raised by the Overseas Operations (Service Personnel and Veterans) Act 2021 and the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, both designed to grant immunity to certain agents of the state for infringements of the ordinary law.

Over in the liberal quadrant of the political spectrum, left-wing voices have reacted to such legislation with horror and dismay. For instance, in a recent interview on its website with Oliver Eagleton, Momentum, the ex-fan club of the ex-Labour leader, referred to this slew of new legislation as the ‘British State’s Authoritarian Turn’. Similarly, in response to the Supreme Court’s Rwanda judgment, Akiko Hart, the Interim Director of civil liberties pressure group, Liberty, accused the government of ‘dismantling the protections that keep us safe and allow us to challenge injustice’ so that ‘only they can win.’ On its website, Liberty hails the Human Rights Act as meaning that ‘you can defend your rights in UK courts’ and compel public bodies to ‘treat everyone equally, with fairness, dignity and respect.’ So the debate goes on.

In the mainstream perception of modern politics, socialists are expected by rote to join the chorus of voices crying out to protect our rights. There is certainly high pedigree in this expectation. After all, high-profile Labour Party figures have been supporting civil liberties as long as the party has existed; Clement Attlee and Harold Laski were founding members of Liberty in 1932, in response to police violence against hunger marchers. But this common conception of socialists as civil liberties crusaders is, ironically, further proof of these so-called socialists’ lack of any real red credentials.

This is not to say that socialists are opposed to the notion that people should be able to protest without being beaten up or arrested, or that individuals should not be dealt with unfairly. Rather, the socialist accepts that to expect such things from the capitalist state is a fairy tale. Human rights law is a noble thing, but under a capitalist economy, nobility is a bourgeois virtue. In reality, human rights rest upon a fundamental – wilful, gleeful – ignorance about the basis of capitalist society.

Bourgeois law, the law of the capitalist state, rests on a fundamental incompatibility between words and deeds, as recognised by all socialists; that the law treats us as free and equal individuals, but the economy treats us as slaves. This contradiction was at the heart of Marx’s thesis in On the Jewish Question. As Marx argued there, the political state is ‘the species life of man in opposition to his material life.’ The political realm is based upon citizenship, egalitarianism, and rights; civil society is based upon egoism, cut-throat dealings, and cold-hearted, calculated egoism. Thus we live in a world where voters starve, and citizens sleep in bus stations. We all have the right (at least on paper) to vote and protest our government, but none of us has the right to eat.

The self-proclaimed socialists of today’s capitalist left, in the Labour Party and outside it, would do well to remember the words of Evgeni Pashukanis, the Soviet judge and jurist whose seminal General Theory of Law and Marxism turns 100 next year:

‘The constitutional state (Rechtstaat) is a mirage, but one which suits the bourgeoisie very well, for it replaces withered religious ideology and conceals the fact of the bourgeoisie’s hegemony from the eyes of the masses’.

Pashukanis points to the ‘ties of mutual dependence’ between, for instance, peasants and landowners, or wage workers and capitalists. To Pashukanis (as to all Marxian socialists), it is these relationships of dependency which form the real basis of the state and its law. These ties are material ties, concerning our relationship to the sources of life, and affecting our ability to provide for ourselves as individuals. The law – law of property, law of contract, criminal law etc – are the state’s ideological reflection of these material ties. These material dependencies are the core from which the bourgeois state grows, and from which its law emanates. But to the legal theory of the state ‘it is as if they did not exist.’ To put the point in a more literary fashion, one need only note the wise words of Anatole France:

‘The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread’.

Sam Moyn, an American liberal professor, notes in his 2018 critique of human rights law, Not Enough: Human Rights in an Unequal World, that until the late twentieth century ‘people were overwhelmingly more likely to utter the word socialism than the phrase human rights in every language’. The growth of mainstream human rights politics has coincided with the death of a politics which, though flawed, sought if nothing else to articulate a vision of human freedom which reached beyond the confines of the bourgeois state and its limited rights; one based not upon legalistic idealism and the daydreams of bourgeois academics, but upon a recognition of the realities of a class-divided society.

In reality, we are not free, and no amount of human rights can change that. The Human Rights Act may sometimes allow you to enforce your rights in a British court, to a limited extent. But it does not guarantee fair treatment or dignity. The bills of rights and international treaties of the world cannot ever hope to accomplish such a colossal task when control of the resources and productive machinery of the world, on which we all depend for our day-to-day existence, is centralised in the hands of a tiny minority of individuals and regulated by the anarchy of a global market whose arbitrary spasms can bring down elected governments and throw millions into destitution overnight.

In reality, human freedom cannot be contained in the narrow and self-defeating limitations of human rights. Human rights – severely limited in scope, and enforced by capitalist states through gritted teeth or not at all – are merely a slapstick imitation of the idea that humans should live with dignity, respect, and community.

Socialists believe not in the ‘human right’ of the egoistic individual, but in the human freedom of the entire species. We gain our freedom by abolishing our rights; by abolishing the degrading class-divided economic structure and its authoritarian states which generate rights like a fire generates smoke. So if you wake up every morning to face the daily grind of wage labour, poverty, or the jackboot and the billy club; if you are struggling to be free in a world which has turned its back on you, stand up not for human rights, but for socialism. Forget the insipid and mealy-mouthed lawyer’s justice, and stand for a world where the means of life – the productive machinery of society and the goods it produces – belong not to one class, but to everybody as a community.

‘You are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody’ (Jean-Jacques Rousseau).

Uther Naysmith

Rights Act is promise to pay of the bankrupt (2000)

From the November 2000 issue of the Socialist Standard

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

Red Snapper: Sound bites and unsound nibbles (2005)

The Red Snapper column from the April 2005 issue of the Socialist Standard

“I don’t think we should be battering this subject to death.”

Martin McGuinness to John Humphries, on IRA members who murdered Robert McCartney by, er, battering him to death. BBC Radio 4, March 9, 8.00am.

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“It will be scrapped. I am determined to ensure that the rights of those who play by the rules are respected.“

Michael Howard on the Human Rights Act, The Guardian, March 19.

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“People who have been arrested say they’ve been brutalised – the tactics used are beyond belief.“

Dr Rafiullah Bidar, regional director of the Afghan Independent Human Rights Commission, on the

treatment of detainess by the US in Afghanistan. Guardian, March 19.

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 “Afghanistan is being transformed into an enormous US jail.“

Nader Nadery, of the Human Rights Commission. Guardian, March 19.

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 “One might have expected a little humility from the Bush administration after its destruction and occupation of Iraq.“

Lindsey German, convenor of March 19th’s anti-war protest in London. Independent, March 19.

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“I’ve not seen anything like this since the Julius Streicher Nazi campaign against Jews.“

Mike Jempson, Mediawise, on The Sun’s recent campaign against Travellers. bbc.co.uk, March 11.

 War on gipsy free-for-all”. The Sun, March 9

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“The man who gave us the dodgy dossier is now giving us The Big Lie…. The man is rattled.“

Liam Fox, co-chairman of the Tory party, Independent, March 19

Greasy Pole : Life, death or suicide? (2011)

The Greasy Pole column from the April 2011 issue of the Socialist Standard

Thanks to New Labour’s trumpeted policy of being “tough on crime” administered by the likes of Jack Straw and David Blunkett (they never actually got around to the other bit about tackling the cause of it all) there are something over 85,000 people in prison in this country (also, they never sorted out whether over-crowded prisons proved that they had succeeded, or failed, to beat crime). At present none of the prisoners is allowed to vote; in any case if they were not banned the fact that they come from homes all over means that the effect would be dispersed between many constituencies and so unlikely to affect any single result. Which has not lessened the interest, not to say at times passion, over whether anyone who has been locked up for offending against some of the accepted norms of property society, by theft or violence, should have a say in how that society is run day-to-day.

Europe

The controversy was brought up for wide public discussion by the case of one John Hirst. By no means an easy, attractive man – as a child he was abused after being placed in a Barnardos home and suffers from Asperger’s syndrome – Hirst was sentenced to 15 years in prison for killing his landlady with an axe in what was described as a detached, callous manner. In the event he served 25 years and after release under supervision on licence he personified the campaign to overturn the ban on prisoners voting, on the grounds that it contravened the Human Rights Act, which became law in the UK in 2000. This Act, which was greeted in many a court room with derisive irritation, sprang from a guarantee in the European Convention on Human Rights of “free elections…by secret ballot under conditions which will ensure the free expression of the people in the choice of the legislature”. But it was not all plain sailing thereafter. In April 2001 the High Court in Britain rejected an application for the enfranchisement of prisoners but three years later this decision was itself overturned by the European Court of Human Rights, leading the Council of Europe in December 2009 to question whether the general election due in May 2010 would be illegal. Which did not, of course, prevent that election going ahead even if some of the candidates were subsequently imprisoned for other criminal offences. In February last, the Commons emphatically opted to keep the ban although this flew in the face of the country’s obligations as a signatory to the ECHR and could lead to prisoners suing for damages which might total as much as £160 million.

Civic Death

In terms of legislation the matter goes back to the Forfeiture Act of 1870, which moderated some of the consequences of “civic death” dating back to the 14th century. The present ban was imposed in law in 1983, 1985 and 2000, which placed the UK at variance with most other European countries and in accord with the likes of Armenia, Bulgaria, Estonia and Hungary, so that a government which professes to staunchly respect the rule of law and the sanctity of its treaty obligations has persistently acted in an illegal and cynical way. Some prisoners – and others outside gaol – may have their own opinion about the motivation of those who preach endlessly about “right” and “wrong” but who are ready to apply their own, conveniently flexible, interpretation of these terms. Is this a problem to those who solemnly construct capitalism’s regulations governing property and privilege? For one thing, the possibility of losing the right to vote through being sent to prison is unlikely to have deterred any of those 85,000 from their efforts to improve their lot through the kind of theft or violence which capitalism rules as illegal. For example in the recent elections in the Irish Republic only 191 prisoners out of a total of 4,500 registered for a vote. So the ruling class can be reassured; from casual contact with some inmates of those grim monuments to futile punishment it is unlikely that if they had the vote they would use it in the only constructive possible way; rather, after their own fashion they will support at the ballot box the whole society of class denial and exploitation – on the assumption that they can so re-arrange things as to be the exploiters.

Cameron Is Ill

David Cameron has said that the very idea of prisoners being allowed to join the millions of misled, prejudiced, unthinking voters makes him “physically ill”. It is difficult to believe that someone who has so ruthlessly scaled the greasy pole is so delicate. Is he not propelled into nausea at the evidence of capitalism’s desolation? Famously reputed to be an affectionate family man, was he not repelled when Save the Children reported that 1.6 million children in the country he rules over are living in extreme poverty? Does he suffer sleepless nights when he hears of yet another incident of children being slaughtered under the guns and missiles in Afghanistan? Are his digestive processes affected when he is informed of the effect of his government’s policies on benefits for the frail and elderly who, no longer a viable employment prospect, look on their future with fear? So what is the scale of the matter? Before it recently emerged into the news through the processes of the law, there was no apparent awareness of it among the electorate at large. It was not an issue during that last election. The entire dispute in this case is another irrelevance when the urgent need is to end a society under the rule of the likes of Cameron and his lies. To end, in other words, this present situation where those who can vote do so as a kind of civic suicide.

Ivan

Tory Bluster About ‘Human Rights’ (2014)

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.

Window-dressing

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.

Pik Smeet