Unlock Democracy incorporating Charter 88 Protecting rights: how do we stop rights and freedoms being a political football? Francesca Klug & Helen Wildbore years of Unlocking Democracy This pamphlet is based on a speech delivered by Francesca Klug at the Convention on Modern Liberty on 28 February 2009 in a workshop of this title. Our lecture and pamphlet series are intended to provoke debate on and interest in issues relating to democracy and human rights. As an organisation promoting democratic reform and human rights, we may disagree with what our contributors say - but we are always stimulated by and grateful to them. The views of the authors of this work should not be presumed to be the opinion of Unlock Democracy or its staff. First published by Unlock Democracy in 2009. This work is licensed under the Creative Commons Attribution- NonCommercial 2.0 License. To view a copy of this license, visit www. creativecommons.org/licenses/by- nc/2.0/uk/ Protecting rights: how do we stop rights and freedoms being a political football? Francesca Klug, Professorial Research Fellow, LSE As all academics tend to do, I will try to deconstruct this question and address it in two parts. First, how do we stop rights and freedoms being political? Second, how do we stop the debate on rights and freedoms becoming like a football match – although sometimes it feels like the current climate is more like a wrestling, than a football, match! How do we stop rights and freedoms being political? If this were the whole question, it would be a misguided one. Rights and freedoms come from political struggle, of course. Human rights values may endure, but you will never end debate about the appropriate balance between liberty and security; privacy and free expression; or freedom of association and protection from discrimination and incitement – nor should you! The issue that confronts us is not how to take rights out of politics but how to enable all to participate equally in politics – and society as a whole – by ensuring that everyone can fulfil their potential through the guarantee of certain fundamental rights; some of which inevitably tread on other people’s freedoms, of course. This is the whole point of bills of rights; in particular, to protect individuals and minorities whose views and aspirations are not necessarily represented by a system based on majority rule. Any bill of rights worthy of the name, whilst protecting everyone’s liberties, gives most succour to the marginalised and unpopular – or controversial causes and questions – precisely because these are the people and issues with least protection from other legislation and policy. When this happens, you will never eradicate negative headlines – they can still dog the Canadian Charter of Rights and Freedoms, more than 25 years after it was enacted. What bills of rights cannot do – of course – is create Nirvana, or Shangri-La. Think of the Patriot Act, Homeland Security Act, Real ID Act 2005, Detainee Treatment Act and the removal of habeas corpus from detainees that the former President of the US, George Bush, designated as unlawful enemy combatants (see appendix one). The American Bill of Rights stopped none of these being passed. All bills of rights are by their nature expressed in broad terms and are subject to wide interpretations by the courts. No bill of rights will guarantee freedoms in testing times if people do not remain vigilant. As the famous US Justice Learned Hand memorably said, “liberty lies in the hearts of men and women; when it dies there no constitution, no law, no court can save it.”2 This pamphlet is based on a speech delivered by Francesca Klug at the Convention on Modern Liberty on 28 February 2009 in a workshop of this title. 2 The Spirit of Liberty, speech at I Am an American Day ceremony, Central Park, New York City, May 2, 944. Page Rights and freedoms as a football match? But politics is only one side of the equation we are asked to consider. The second part of this question, football, is altogether another issue. This is a game which ignites passion, without doubt. A game in which scoring points is the whole point, and backing your side against the other team is the whole pleasure. Point scoring in the current debate about a new bill of rights and the Human Rights Act (HRA) is evident, although sometimes the race seems to be to the bottom rather than the top (of the division). The irony is that whilst giving an appearance of being two opposing teams, the two main political parties have at times seemed strikingly close on this issue. Both have resented the sometimes significant incursions on state power brought about by the HRA. Both have stated that their reason for supporting a bill of rights is to underline the responsibilities of the individual and the importance of ‘good behaviour’. It is the Liberal Democrat frontbenchers, the long time supporters of a bill of rights, who have been expressing the greatest reservations about the way the current debate is framed. Why? Well partly because it feels like only yesterday that the HRA, which incorporated the European Convention on Human Rights (ECHR) into UK law just eight years ago, was itself widely regarded as a bill of rights. The Lib Dem leader, Nick Clegg, in a speech at the end of last year, called for “a clear and responsible stand on the Human Rights Act…Human rights are not something you pick up one day and put down the next. They are the unwavering, unshakeable commitment to the dignity of people. They are the principles by which we can call ourselves civilised.”5 The leader of the Opposition, David Cameron, kicked off the current ‘debate’ about a Bill of Rights with a promise to “replace” the HRA with a “British Bill of Rights”. He has repeated this commitment to “abolish” the HRA several times. One of his central reasons is that the HRA “has made it harder to protect our security. It is hampering the fight against crime and terrorism”. Of particular concern to Mr Cameron is the (exaggerated) belief that “we’ve got to a position where the Home Secretary doesn’t seem able to deport people who would put the country at risk”; the same restriction on executive power that led former Labour Home Secretary John Reid to regret that his government had ever introduced the HRA. It is difficult to think of a precedent outside the former Soviet Union where the case for constitutional rights has been made on the back of increasing the powers of the state. The (relatively few) deportations that have been prevented by our courts (stemming from a European Court See Jack Straw, Uncorrected Evidence to the Joint Committee on Human Rights, 20 January 2009. Dominic Grieve was quoted in a Northern Ireland newspaper in January as saying that the Conservative Party intend to create a bill of rights which would have in-built safeguards to prevent those “whose own behaviour is lacking” from abusing its powers. ‘Rights culture is out of control – Tory MP’, News Letter, 0 January 2009. 4 When the ECHR was drafted after World War II, largely at the behest of the British government, all political parties took the view that, unlike most of the rest of Europe, it should not become part of domestic law (although UK governments became subject to the rulings of the European Court of Human Rights in Strasbourg). After a sustained campaign, spearheaded by groups like Charter 88 and Liberty, the New Labour government relented and passed the HRA. Speech at Amnesty International to mark Human Rights Day, 0 December 2008. Other front bench spokespeople, and the former Lib Dem leader, have made similar remarks. David Cameron, ‘Balancing freedom and security – A modern British Bill of Rights’, Centre for Policy Studies, 26/06/06. Cameron on Cameron: Conversations with Dylan Jones, Fourth Estate, 2008, p.. 8 Interview in News of the World, 16 Sept 2007. Page of Human Rights ruling which preceded the HRA9) all revolve around a concern that the deportees will be killed or tortured if they are returned to their home country. The second, and perhaps even more unusual argument for replacing the HRA with a British Bill of Rights, relates to the power of the judiciary. Cameron has advanced the case that a British Bill of Rights would somehow allow UK governments to ignore European Court of Human Rights rulings it does not agree with, a proposition which has been demolished by research from Oxford University which demonstrated that, if anything, the reverse applies.10 As a variant of this argument, former Shadow Justice Secretary, Nick Herbert, advanced the case that a bill of rights would bolster parliament. Protecting parliamentary sovereignty from judicial scrutiny is the classic argument for opposing bills of rights, not supporting them!11 Rights and freedoms are not a game, of course. Least of all one whose rules should change to suit political leaders12 – across the political spectrum – or to respond to newspaper headlines. People who call for a new bill of rights have got to make up their mind exactly what vision they are conjuring! If they are seeking enduring values which are constitutionalised, they will have to accept that although we might be the lucky ones to have a say in what these fundamental rights and freedoms should be, we will deprive future generations of this pleasure. It will inevitably fall to unelected judges, not ‘the people’, to interpret their application, and flesh out their meaning, as the years go by.