Disagreeing over Human Rights Law

Why supporters and critics of the European Convention on Human Rights often talk past one another

The future of the United Kingdom’s membership of the European Convention on Human Rights (ECHR) is being debated at the highest levels of British politics. So too is the question of whether the Human Rights Act 1998 (HRA) should be repealed, perhaps to be replaced by a (British) Bill of Rights or perhaps not to be replaced at all.

The Labour Government remains robustly committed to UK membership of the ECHR and has an “absolute commitment” to the HRA. However, at the same time some Labour backbenchers and former ministers like Jack Straw have expressed an openness to withdrawal if this proves necessary to address the migration crisis. The Home Secretary, Yvette Cooper MP, is also currently considering proposals to tighten up the application of Convention rights in the context of migration and asylum, amid concerns that immigration judges are routinely deploying the Article 8 right to respect for private and family life to prevent removal of foreign criminals or illegal migrants. The Uber socially progressive Liberal Democrats, too, seem to agree that some reform might be warranted, with their leader Sir Edward Davey saying that he might be open to change “if you could do it collectively, working through with the court, with European colleagues to try and make sure that human rights are protected fundamentally but it doesn’t have perverse consequences, one could look at that”.

On the right of British politics, the insurgent Reform Party is deeply committed to ECHR withdrawal and the Conservative Party is openly discussing this course of action, with the Leader of the Opposition, Kemi Badenoch MP, recently setting up a new Commission chaired by the Shadow Attorney General Lord Wolfson KC to consider, inter alia, the policy problems posed by the ECHR.

It is critical that any would-be reforms to the European Convention or the Human Rights Act 1998 are thought through carefully. Withdrawal would be a significant political decision, much costlier and more controversial than the UK’s entry into the ECHR in 1950 or its acceptance of the Court’s jurisdiction in 1966. It follows that any government that intends to lead the UK out of the ECHR must attempt to anticipate and address the various objections that are likely to be made to withdraw

This debate is heated, and likely to get even hotter in the run up to the General Election in 2029. In this post, I want to highlight a peculiar feature of the current debate that is likely to structurally stymie serious engagement or dialogue between those who variously support remaining, leaving, or reforming the status quo.

It seems to me that commentators supportive of the status quo will often (I use often in contradistinction to always very deliberately) discuss the work of the European Court of Human Rights (ECtHR) in a way that makes two big assumptions:

One assumption is that the judgments of the ECtHR are invariably one to one with, and faithful to, the genuine legal commitments contained in the ECHR that were agreed by the signatory states. This assumption results in some lawyers and politicos proceeding in debate as if respect for the jurisprudence of the ECtHR and respect for the ECHR are synonymous, and that the Court is incapable of falling into egregious legal error, or engaging in de facto legislating beyond their rightful jurisdiction.

Another way this view finds expression is in the belief that respecting the rule of law means respecting the Court’s case law, its methodology, and and its approach to legal reasoning. There is little room here for the idea that the Court itself might act in breach of basic requirements of the rule of law, like respect for legal certainty and predictability, or ensuring congruence between the law as enacted and as applied.

At its most crude, defenders of the Court risk slipping into the quasi legal realist stance that “the law is whatever the court decides”, as opposed to the law being those legal propositions the Court itself is bound by, as much as any signatory state is.

These assumptions can lead to some supporters and critics of the ECtHR speaking past each other in the following sense. While a critic of the Court might be saying that they disagree with the Court’s jurisprudence because they think it lacks any solid basis in the text of and intent behind the Treaty, or that its typical reasoning process and mode of action more closely resembles a legislature than a Court, the supporter may frame that complaint as an objection to the law itself or to the idea of respecting legal constraints when they impose any fetters on policymaking. But as with any tribunal the law, and what a court says the law is, are not necessarily one and the same.

A second assumption liable to cause misunderstanding is that when a human rights court like the ECtHR is elaborating the demands of a human rights instrument like the ECHR, that this is the same enterprise as discerning what respect for human rights/dignity actually demand as a matter of moral truth.

This, however, is a potentially disastrous conflation. It cannot be stressed enough that human rights and human rights law are not the same thing. Ideally, of course, the latter will faithfully track the demands of the former. But this is not always so; they are capable of coming apart and often do.

To state the obvious: human rights are a critical component of the common good. Political authority exists solely to serve the good and flourishing of all citizens. Because authority and power exist solely for the sake of persons and families, the individual and family unit are owed - as a matter of justice - rights and liberties which the state cannot legitimately intrude upon, usurp, or neglect; such as the primary obligation and right of parents to nurture, love, and educate their children.

Some duties owed by the state to its citizens concern that which is needed to respect an individual’s status and worth as a human person and are closely linked to rendering what is required for individual well-being in community. It will involve ensuring that all citizens, taken one by one, are treated in ways that are appropriate for human persons and their faculties and capacities as rational-social animals.

This of course includes absolute and exceptionless norms like not being intentionally subject to arbitrary killing or torture or degrading treatment. It will also involve impartial and fair treatment by the state in the administration of the civil and criminal laws; the tenor of which obligation is broadly captured by Lon Fuller’s famous rule of law desiderata.

To ask about human rights tout court is to inquire about what the object of justice is in a given situation. In the classical tradition, rights in their primary sense should be understood in objective terms, as those things (forms of action, treatment, and consideration) owed from one person/body to another because justice demands it, because required by natural law or just positive laws ordered to the common good.

Positive law instruments can help to bed down and specify in greater detail fundamental principles of justice and objective aspects of human flourishing in something like a bill of rights. Positive human rights instruments, like the US Bill of Rights, fundamental rights provisions of the Irish Constitution, or the ECHR, can help promote the common good by informing and disciplining the exercise of political authority, by bearing on how officials must act, including by ruling out certain kinds of state conduct as contrary to human flourishing and the common good. Ideally, human rights law will help orient political authority toward acting consistent with the objective demands of justice.

In a well-functioning system of adjudication, those charged with enforcing these kinds of rights instruments will be committed to inferring the propositions of law the legitimate authority which authored the instrument intended to enact, the mischief they did and did not seek to address in positing what they did, along with the human goods they had in view, all guided by a series of rich juridical presumptions that the ordinance will always be interpreted consistent with reason, justice, and the common good.

However, it may be that human rights law enacted and interpreted at “Time A” which accurately tracked the requirements of genuine human rights might, at “Time B”, come to be interpreted in a manner at odds with justice and the common good.

It could be that a Court will interpret an otherwise sound provision so expansively that it will begin to protect interests over things that are not, in truth, owed to some as a matter of justice; but may encompass and juridify socio-economic or political questions on which reasonable minds may justly differ very widely. In other words, what the Court begins to refer to as a human right might be more accurately referred to as a policy or interest that a person or group finds immensely beneficial or desirable.

Or, more troublingly, a Court may come to interpret an otherwise sound provision in a manner actively contrary to the demands of justice and the common good. In either kind of circumstance, we can see the objective demands of human rights, and human rights law, becoming decoupled.

Why is this conflation bad? I can think of several reasons. It can debase the concept of human rights in the public imagination, especially if human rights law becomes associated with enabling injustices or harms to the common good. It can also lead to a lack of critical thinking amongst citizens and politicians, who might begin to unthinkingly outsource their opinions on what human rights are and require - some of the most profound moral questions we must all grapple with - to irresponsible (in the non pejorative sense of that word) judges and lawyers.

Finally, and most pertinent to this post, it may lead those debating human rights law and its merits to speak past one another. It means that some defenders of the status quo of the ECHR will struggle to categorise serious and sweeping critiques of the Strasbourg Court’s jurisprudence as anything other than a dangerous attack on the very idea of human rights acting as a fetter on public power.

This would involve an element of talking past one another as serious critiques of the ECHR (there are of course unserious critiques motivated by things like crude nationalism or majoritarianism etc) are rarely based on the idea that human rights and human dignity are not indispensable components of the common good.

Rather, critiques are more likely to be along the lines that the ECtHR regularly adds glosses to the ECHR that place unbearable strain of its text and intent, which expands its reasonably intended scope away from covering basic and fundamental rights and toward an enormous (even impossible to definitively pin down) range of interests that cannot be considered demands of justice. A related critique is that its case law can actually create injustices of its own that threaten genuine human rights and the common good. For example, from the perspective of the natural lawyer, if the Court should someday conclude that a European consensus has developed such that it now allows it to conclude that Article 8 and its right to privacy has now evolved, and now affirmatively requires the state to facilitate things like assisted suicide, abortion, or commercial surrogacy.

To be sure, there are many supporters of the status quo that definitely do think that the ECtHR’s case law broadly does successfully track what respect for genuine human rights requires. But many others implicitly speak as if the sheer fact the ECtHR asserts a particular state of affairs falls under one of the ECHR’s provision that this assertion somehow elevates it, as a matter of moral truth, into a genuine human right.

There is something of this attitude on display, for example, in the reaction by some lawyers to calls for the ECtHR to change doctrinal tack on its jurisprudence concerning the State’s ability to regulate the entry and exit of non-citizens, including those who are presently unlawfully, have committed serious crimes, or pose a risk to the citizens of a member state.

The implicit framing of some of those reactions is that doctrinal reform in this area, for example to give the state more discretion over the entry and exit of non-citizens would have committed serious crimes, would “dilute” or “lower” human rights standards in response to popular pressure. But this style of reaction presumes that the Court’s doctrine in this domain already maps neatly onto what respect for human rights and justice truly demands; an assumption which is (to understate things) immensely morally contestable given the bewildering range of competing interests, risky trade offs, possible consequences, known unknowns etc that are always at play in structuring jural relations between citizens, non citizens, and the political authorities of a member state.

If people cannot also make a good and explicit case to their fellow citizens justifying the ways in which the Court’s doctrine in this or that area is broadly required by objective considerations of justice, concern for human flourishing, and the common good, then claiming that trimming the Court’s supervisory authority would amount to a “dilution” of human rights, amounts to little more than asserting, ipse dixit, the dubious proposition that the Court is akin to an authoritative moral arbiter for the peoples of Europe whose pronouncements are invariably sound.

Overall, I think these habits of thinking more or less guarantee a great deal of talking past one another and mutual incomprehension as the debate over the UK’s future membership of the ECHR rumbles on.