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Jack Straw's Dilemma

Don Flynn celebrates the birth of the Human Rights Act but asks is it power to the people or power to the judge?

The enactment of the Human Rights Act on 2nd October has been celebrated at the left/liberal end of the political spectrum as the biggest change in constitutional law in 300 years. For the first time, we are told, individuals will benefit from the enforcement of a wide range of basic rights in the domestic courts. Public authorities and those exercising public functions - including employers - will be obliged to respect the rights laid down in the European Convention on Human Rights. Even Acts of Parliament will have to be interpreted in a way that establishes compatibility with human rights requirements. In the event that a court felt that a particular statute conflicted with the new standards of rights, it might declare the law to be incompatible with the convention. Parliament will then have a fast track procedure by which such laws could be amended.

The Act has not pleased the ideologues of the right. They see it as compromising the principle of the sovereignty of parliament: the raising up above traditional British civil standards of legal principles forged by the constitutional revolutions of Europe and the Americas. Furthermore, it will mean a field day for judges, seizing new powers for themselves to make radical changes to the law, and upsetting the age-old balance of power between the legislature and judiciary.

The official new Labour government line on all this is ambiguous. On the one hand ministers have enjoyed congratulations for the production of one new piece of legislation which cannot easily be presented as another disappointing Tory compromise. On the other hand they have been anxious to reassure all those who need reassuring that the Act is merely a tidying up measure. The Act does nothing new they opine; it simply allows more direct access to rights which have been available to UK residents since the Convention was signed up to in 1950. The necessity of having to proceed to the Strasbourg-based European Court of Human Rights in each and every case has been circumvented by the new powers granted to the judges in the UK jurisdiction to consider complaints of human rights violations directly.

On this, moderate, interpretation of the effects of the Act, Labour is probably correct. The untrammelled sovereignty of the UK parliament has been much eroded during the decades since the second world war. An increasingly complex international legal regime requires governments and parliaments alike to bend to world trade regulations, the European Union's competencies, and, more recently the de-centralising shifts towards assemblies and parliaments in different parts of the UK. The Human Rights Act is in many ways little more than a long-overdue rationalisation of complicated procedures which will produce all round benefits by way of transparency and greater simplicity.

But enthusiasm for Constitutional tidiness is not the reason why some genuine radicals have committed themselves to the success of the Act, body and soul. Charter 88 - the best known constitutional reform campaign group - has long proclaimed the need for a human rights act as a key instrument in creating what it calls 'a culture of citizenship'. Liberty - the former National Council for Civil Liberties - has argued that there is intrinsic value in a legal order which maintains the rights of individuals against the power of the state, irrespective of its consequences for administrative efficiency. For these, and other, campaigning groups, the emergence of a system based on the inviolable character of human rights is a part of the long, slow British revolution towards a modern political democracy.

These are not views you would expect Home Secretary Jack Straw to feel comfortable with. His reputation as a cautious conservative in social and political matters is well illustrated in his response to pressures for reform and liberalisation across a wide range of issues. The extent of his trepidation with regard to the potentially radical impact of a new human rights culture was shown very clearly in a public lecture entitled 'Human Rights and Personal Responsibility' given to an audience in St Paul's Cathedral on the day of enactment of the new legislation.

Straw's theme was that the battle for human rights should not develop merely as the ascendancy of the individual over the state. The original European Convention was framed during a period when the public mind was much exercised by the recent (and then current) evidence of state inhumanity and contempt for the lives and liberties of citizens. With the shadow of Nazi and state communist repression cast over the deliberations of the international community, the Convention became a means - feeble perhaps, but better than nothing - of asserting a right to life, protection from inhuman and degrading treatment, liberty and respect for privacy as the cornerstone of the community of democratic nations.

There is too much in the activities of modern democratic countries which still gives rise to concerns about violations of fundamental rights, be it state repression or inhuman treatment, as in the case of the UK. This is illustrated in the context of government policy in Northern Ireland or with regard to refugees and asylum seekers. But the logic of a Convention which has its foundations in a legal order is that the arguments available to a victim of torture, or a family torn asunder by immigration policies, are also there for the use of a highly paid professional anxious to escape the shackles of a contract unwisely entered into, or a litigant who wishes to argue that aspects of the tax system are burdensome and oppressive. Much has been made of Cherie Booth's initiative in establishing a set of chambers exclusively for human rights barristers, but the truth is that if the Human Rights Act does help sustain 'fat cat lawyers' it is more likely to be because their clients are George Michael, or feudal-minded landowners, than the truly down-trodden and oppressed.

Straw argues that the emergence of a new world of human rights must entail more than a further tilt of the scales toward individualism and against collective responsibility. 'No man is an island', he quoted on several occasions to his St Paul's audience, gesturing to the statue of John Donne behind him in the transepts, and the socialists amongst them would have been hard put not to agree. Indeed, a concept of human rights itself is only possible because of an act of the collective imagination, raised to the level of a cultural and political reflex, by the actions of society on individuals. Straw's question is one worth asking. How do we prevent a culture of human rights from degenerating into a squabble about selfish individualism, backed by the force of the law?

Unfortunately, Straw's answer - which unites both new and old Labour's concepts of the prerogatives of power - is disappointing. Basically, he says, we leave it to the state. It is the state which will balance out excessive individualism with policies that assert the primacy of marriage, the family, and an emphasis on old-fashioned 'civics' as a core element in the educational system. In short, all those social and state institutions most under assault by the forces of modernising individualism are to be relied upon to raise the standard of community and collective responsibility.

Well don't bet on it. It will take more than government tweeking of its tax and social security policies, and the imposition of yet more burdens on the teaching profession, to rescue the situation. What is needed in fact is a reconceptualisation of human rights in the period ahead, not as the terrain of legal disputation, but as a gut response emerging from the fighting organisations of civil society. What will ultimately be more important for the fate of our society as a place where basic human values are sustained is not what goes on in the courts (though that has a part to play), but the ways in which the press and media promote these ideals. How these values are tackled in the cultural and artistic output of wider society and how the religious faiths proclaim their scope to their communities of believers will also be vital. The real test will be how the trade unions take up battles on behalf of groups of workers and how political parties (as opposed to parliamentary factions) educate their activists. Finally, the scope available within the economy for forms of productive activity that are rooted in cooperation and solidarity, rather than individualism and competition will be fundamental to a judgement of the social benefits of the Act.

The struggle for human rights is too important to leave to the judges, the politicians, or indeed any one faction of society. Rights available through the law courts are too often available only to relatively wealthy people with access to the top QCs and all the other resources needed to mount a legal battle. Nor will a human rights culture flourish as a politician's programme to support the family or other good causes. Jack Straw's real dilemma is that it will probably take something like good, old-fashioned class struggle to ensure that the values of a decent and humane society triumph over selfish individualism.


November/December 2000