Divided Loyalties

Today sees the launch of a new pamphlet authored by Peter Oborne and Jesse Norman (author of compassionate conservatism and a Prospective Parliamentary Candidate for a target seat currently held by a lib dem) ‘Churchill’s legacy: The Conservative Case for the Human Rights Act’.

According to Peter Oborne, the Human Rights Act is a “near perfect expression of Tory values.” Obviously, Peter Oborne and I share fundamentally different conceptions of what constitutes authentic conservatism.

I have always been intrigued by Cameron’s proposals for a British Bill of Rights and have had sympathy with his criticisms of the Human Rights Act. Indeed, attacking the Human Rights Act as a ‘thugs charter’ makes sense as a short term tactic in opposition to win votes. But once in Government, I would imagine that enacting a British Bill of Rights would not be one of Cameron’s follow through policies given the other major strategic choices and decisions he faces in areas such as the economy, public services and foreign affairs.

At this point, perhaps, I should declare my hand though – as a court sceptic and a political constitutionalist I subscribe to the view that citizen’s fundamental rights and liberties are best protected, defined and decided on through the legislative process, not by handing power over this area to the judiciary and unelected judges.

This is not a left/right debate but a debate about where accountability and power should lie in the UK constitution. Will the UK’s constitutional future be one characterised by an ever increasing willingness to embrace the legal constitution or will it stay consistent with the inheritance of political constitutionalism.

As the public law expert, Adam Tomkins argues,

“Traditionally, English public law has been based on the political constitution, but over the past thirty years the tradition of the political constitution has come under increasing pressure from the rival theory of legal constitutionalism.”

Just because judicial activism might lead to conservative or centre right outcomes in terms of public policy does not mean that those from the centre right should support the judicialisation and ever greater legalisation of politics. Indeed, it used to be the centre – left who were articulated the most scepticism about the judiciary’s ability to bring about progressive change in society and yet now, more often than not, it’s the centre right, which criticizes  constitutionally entrenched charters of rights as being contrary to their fundamental values.

Ron Hirschl has observed that over the last 20 years constitutionalism across the globe has made the “astonishingly rapid transition to what may be called juristocracy” as liberal democracies witness the expansion of judicial power at the expense of the legislature.

In the UK’s constitutional system, there are problems with how accountable the Government is and the effectiveness of Parliament in holding the Government to account. But the answer to the problems within the UK’s constitution lie not with the ever increasing expansion of judicial power. The modification of the Westminster model of governance in light of the challenges posed by devolution does not necessarily mean we have reached an end of history moment for the political constitution. As I have said elsewhere,

“The problem with constitutionally entrenched charters of rights in general is that they facilitate the judicialization of the body politic and the legalisation of political discourse. As the great JAG Griffith stated, “What are truly questions of politics and economics are presented as questions of law.”

The crux of Cameron’s argument on the need to replace the HRA with a new British Bill of Rights is neatly summarised by Theo Rycroft who in an article for the UCL Human Rights review said that,

“The HRA had failed, in Cameron’s view, adequately to protect liberty, and it had undermined the state’s ability to provide its citizens with security. What was needed was a document which defined ‘the core values which give us our identity as a free nation’ and spelt out ‘the fundamental duties and responsibilities of people living in this country both as citizens and foreign nationals.”

Dominic Raab’s book, ‘the assault on liberty’ makes similar arguments criticising the Labour Government for expanding the power of the state at the expense of the individual liberty of British citizens. The problem with Raab’s critique is that the expansion of state power under Labour is more adequately addressed through the work of conservative thinkers like Philip Blond and Danny Kruger.

Oborne and Norman’s argument is that Cameron’s conservatives should abandon his plans to repeal the HRA and replace it with a British Bill of Rights because the HRA is “a thoroughly Conservative piece of legislation, as a matter of history, of law and of philosophy.” They argue that the ECHR and Churchill’s support for it put an approvingly conservative stamp from history on the HRA and that most of the conservative’s criticism of it are unfounded.

As Oborne argues at the guardian’s comment is free,

“Start with history. The rights set out in the act are taken directly from the European convention on human rights, which was signed by the UK in 1951. They were inspired by a Conservative politician, Sir Winston Churchill, and drafted under the guidance of another one, David Maxwell-Fyfe (later Lord Chancellor Kilmuir) in the face of considerable opposition from the Attlee government. The act should thus be regarded as the creation not of New Labour, but of the Conservative party.”

Oborne addresses the issue of rights inflation, where, increasingly, moral and political claims are made using the language of rights, and argues that it’s not the ECHR/HRAs fault but that of the EU Charter of Fundamental Rights. However, the problem of course is more philosophical than it is practical. Debates about rights conceptually, what they are, and who has them, go right to the very heart of many contemporary debates in political philosophy.

The part of the pamphlet I found the most intriguing, however, is the section on Burke and rights where the authors, as I see it, attempt to construct a Burkean defence of the Human Rights Act based on making a conceptual distinction between ‘abstract or metaphysical’ rights and rights that are actually codified in law based on the traditions of the common law and human experience.

The task of analysing Burke’s view of rights is complicated as Jeremy Waldron notes,

“The task of understanding Burke’s attack on the Declaration of rights is complicated, first by his own insistence that his intention was not to attack human rights as such but to vindicate what he called the ‘real rights of man’.”

Burke observed that, “Government is not made in virtue of natural rights, which may and do exist in total independence of it; and exist in much greater clearness, and in a much greater degree of abstract perfection: but their abstract perfection is their practical defect. By having a right to everything they want everything”

Burke in rejecting the rights of man as an abstraction thought that politics should be viewed in the words of human rights academic A. Belden Fields, “as a concrete and delicate process of evolution that is driven by dynamic within the bodies politic…That also meant that the civil rights and rights holders would differ from political system to political system”.

Therefore within specific and distinct national traditions rights would evolve organically and would be relative to specific national traditions. The radical imposition of long lists of the rights of man runs counter to the type of conservative thinking that stresses the organic evolution of ideas, concepts and practices.

The idea advanced by Burke that the problem with rights is their perfect abstraction is central to his critique. In his words “what is the use of discussing a man’s abstract right to food or medicine? The question is upon the method of procuring and administering them. In that deliberation I shall always advise to call in the aid of the farmer and the physician, rather than the professor of metaphysics” and as Onora O’Neill says “what is the point of having an abstract right unless you also have a way of securing whatever it is that you have the right to?”

Would Burke have supported the Human Rights Act?