Below is a selection of talks from the Are Rights Universal session.
Andrew Dismore MP: Geraldine mentioned she had been in South Africa. As part of our inquiry into the issue of the British Bill of Rights on the Joint Select Committtee on Humna Rights, we too visited South Africa, and Albie Sachs, the famous constitutional court judge, said to me, “A country without social and economic rights is a country that has given up on aspiration.”
I think that is quite an interesting discussion-opener. I go back to Roosevelt’s statement of the four freedoms: before the war, the freedom of speech and the freedom of religion – the traditional ones, and then the freedom of want and freedom against fear which ultimately became incorporated into the UN Charrer – President Rooselvelt’s wife had something to do with that! – and since then into a plethora of international conventions.
Today’s debates in the rest of the conference have focused very much on negative rights: that is, the civil and political rights where it is the individual against the state, whether it is the right for freedom of expression that shouldn’t be interfered with by the state, intrusions into privacy by the state or detention without trial – all very negative things. What we are talking about with socio-economic rights is a positive duty enjoined on the state to actually do something, rather than not do something – on health, education, housing, and an adequate standard of living. These are very important issues. I was in my constituency surgery this morning, so I didn’t get to hear the start of conference. But when people come into my surgery and thump the table about their rights being infringed, this is usually not about their right to vote – but about wanting to have a decent council house, or “I can’t get my kids to school”, or “I can’t get my kid’s Special Needs Assessment done” or “ The NHS aren’t giving me my appointment on time” or “My benefits have been cut”. These are all issues relating to socio-economic rights which touch everybody, and not just vulnerable people although particularly vulnerable people, every day of their lives. We take the political and civil rights for granted that today’s conference is highlighting, in an established democracy. But we also have to look at the more positive side, particularly in an economic downturn.
These rights are of very great importance to the middle classes to. A good example was the Horsham Property case, last autumn. The High Court ruled on a combination of the small print in the Mortgage Deed and the 1925 Property Act, saying that a mortgage company can sell your house over your head if you are just one payment in default of your mortgage without an order in the court, and that turns you into a trespasser in your own home, and you can be evicted without any inquiry into the circumstances. Now the government has put an awful lot of effort into making housing repossession the last resort, for a court to order proper inquiry into the circumstances, can you have your mortgage rescheduled and all that sort of thing. All that is out of the window because of this case. If we had a basic right to housing that you can’t be evicted without an order of court and a proper inquiry, the court would not have been able to come to that conclusion becaue it would not have been in accordance with the right to housing. On another issue, we are now seeing a lot of middle class people migrating into the state sector of education – I wonder why! – and again, these issues start to become very important.
When we talk about the universality of human rights, some of the people who are criticising the whole discourse on the grounds that it favours the vulnerable, may see themselves benefiting from it as well. In Northern Ireland they have just published their consultation on a Bill of Rights and their recommendations to Government. They are ahead of us in the game. All the opinion polling showed that the whole aspect of socio-economic rights and raising that profile was very very popular indeed.
To some extent, these rights are happening already. The UK Government has said that in this current session of Parliament we are going to have a Bill on Child Poverty. That is essentially putting into statute a social and economic right and I think it should be incorporated into a Bill of Rights. We have seen the publication of the NHS Constitution – again a social and economic right. There are arguments about its enforceability. If you look around our legal system you will see all sorts of rights and duties buried in all sorts of statutes. There is no over-arching view that pulls all those together. We have got lots of laws on housing and housing protection, lots of laws on education, on benefits, but no over-arching philosophical statement like a Bill of Rights which can pull the whole thing together in one framework to say – that’s what it’s all about.
The whole issue of socio-economic rights is on the agenda in a way that they probably weren’t eighteen months ago, despite the fact that, I will say it myself, my Committee has been nibbling away at this for some time. There have been some interesting comments from the Prime Minister which seem to confirm this. In his speech to the 60th anniversary of the UN Declaration to the Equality and Human Rights Commission, what he actually said as opposed to the public text was quite interesting: ”There is an indivisibility of civil and political rights and social and economic rights. They go together.” You won’t find that in the published text but that is what he said and it might well be what he believes. You can see that we are swimming with the mainstream, in the Government’s response to our own report on the British Bill of Rights and Freedoms as we called it.
The real issue here is enforceability. And this may be where to an extent I part company with Geraldine, because I am a politician. The real question is, to what extent should these rights be individually enforceable through the courts and to what extent should they be enforced through other means? We have tried in our report to square that circle. There is a real difficulty in giving the courts the role of politicians to decide on the allocation of resources. That is our job to decide – how much taxes you should pay and where the money should go. That is not to say though that we can’t have an indirect enforceability of these rights. The courts are public bodies. And when interpreting the law, as in the Horsham Property case I just mentioned, they should be required to interpret that existing law to give effect to a basic, underpinning Bll of Rights. If that happened I don’t think they could have come to that conclusion. We could also have what in all the international treaties is called a ‘progressive realisation within available resources”. In other words, a duty on the Government to work towards expanding and improving the lot of the people in accordance with the money that is available. That is what I think we will see in the pledge on child poverty.
You can also have a bottom line which says, nobody should fall below this standard. Three examples of this from South Africa’s Constitution Report show how it works: in one health care case someone tried to jump the queue for a kidney transplant using their rights to healthcare in the Constitution and they were blown out; a group of women who were pregnant and had HIV Aids were being denied anti-retroviral drugs by a South African Government, not on grounds of cost, because it was being paid for by overseas donors, but because of President Mbeke’s somewhat strange views on Aids, and here the constitutional court reversed that bad policy decision. Lastly, on the bottom line, a group of people were evicted and living on a football pitch with no shelter whatsoever, and in the case, the government was instructed by the courts to provide a basic minimum shelter.
There is no reason why we can’t have these in a Bill of Rights. We don’t have to have ‘direct enforceability’ because I think that does encroach on significant areas where elected politicians should be taking the decisions. But this provides a vital underpinning, and I think it provides a way forward for making human rights understandable, popular and of relevance to everybody in this room.
David Goodhart: I want to draw the camera back a bit and challenge some of the things that have been said so far. It seems starkly obvious to me that human rights at least in a non-technical term are neither universal nor innate. After all, most people in the world have none with a few Henry II- granted exceptions as Geraldine Van Bueren reminded us. We didn’t have any until a few hundred years ago and we now have a vast number of social and political rights as a result of all sorts of political battles and ideas, technology, but mainly institutions – criminal justice system, courts, police forces, parliaments and so on. These struggles and these institutions are mainly but not entirely national, and they declare and enforce rights.
Non-citizens of course have historically had rights too, albeit not the same rights as citizens. They now have, partly thanks to the Human Rights Act, a great many more rights. That is partly the result of what we might call the universalist shift of the twentieth century, following two world wards, the holocaust, decolonisation, there was a general belief at least among the western political class, that we had to embrace the previously Utopian religious idea of the moral equality of all human beings. And we did embrace that idea: it was laid out in the UN Declaration of Human Rights, and via that found its way into our laws and statute books. And we all sign up to that now obviously. But I think that the great fallacy of liberal universalism or what one might all human rights fundamentalism is the claim that the universal moral equality plus human rights legislation somehow makes increasingly irrelevant the nation state and the national political community. I was reading, as I always do with great interest, Shami Chakrabarti in the Guardian the other day, And she wrote this sentence: “In the modern world of transnational and multinational power, we must decide if we are all ‘people’ or all ‘foreigners’ now.” No, we mustn’t decide that. We are both and obliterating the distinction in effect obliterates the nation-state and national citizenship. And why on earth would we want to do that when the nation-state has conjured up all the things that we hold most dear – the democratic accountability we have been talking about, the ability of a political community to debate with itself, the welfare state which has existed only in nation states, redistribution, inter-class and inter-generational solidarity. These are things that might exist to a small extent outside the confines of the nation state but not to any great extent.
So I would conclude that the moral equality of all human beings must be compatible with special obligations and commitments to fellow citizens. The analogy used to be with the family. Most people do not consider their family morally superior to other families but they automatically put their interests first. To consider the political community as an extended family may seem rather old fashioned nowadays and I think it probably is – but still the idea of fellow-citizenship favouritism is still essential to the workings of the nation-state, and implicit in so many of our political actions. One of my favourite examples is that we spend 28 times as much on the National Health Service as on development aid.
To sum up so far, most rights are national in origin and they are also contractual and reciprocal and they derive from membership of a political community. That seems pretty obvious in the case of social and welfare rights: you pay in through your taxes and you draw out when you need to. But it is also true, I think, of political and legal rights. Now of course, non-members have rights too, but they have rights because we extend those rights to them by signing up to the various EU and international human rights norms. But we must be free not to extend those rights to them especially when their rights conflict with the rights and well-being of British citizens as they can do sometimes and have done in recent ‘terror’ cases. This obviously affects the whole tricky business of people’s rights to come here and stay here. The Belmarsh case and related cases is a very good example of this dilemma: when there is pretty decisive intelligence information which suggests that people are a serious danger to British citizens, but not sufficient evidence to prosecute them in a British court and they aren’t British citizens themselves, it seems to me in most circumstances that you should remove these people from the country.
Now to sum up, it seems to me that there are at least three problems with human rights fundamentalism. First of all, if all humans have essentially the same rights regardless of political community membership, it breaks the bond of citizenship, it destroys something very precious. Also, the rights we claim are also demands we make on each other. Some of those rights are very costly and therefore imply obligations on other people to pay their taxes and fund those rights. I think that the whole human rights debate presupposes the solidarity and sense of obligation and recognition that it imagines that it creates. The whole human rights discourse is in a sense parasitic on existing commitments and if rights are extended too indiscriminately, they will no longer connect to a felt obligation and the system will gradually unravel. Finally, and perhaps most of all, I think we are labouring under a legalistic illusion. The idea that all these deeply, deeply political decisions - who gets what, when, where? or the abolition of poverty, or who is allowed to come to Britain and who isn’t - can be ‘legalised away’, taken from the political community and handed to judges and human rights experts seems to me deeply misguided and reactionary.
Roger Smith: One of the great things about today is that it has brought together as a coalition those who would say that they believed in and were advocates of human rights, with those who believe in and are advocates of civil liberties. That is a delicate manoeuvre and it is a rather good and unique thing to have done. There are all sorts of difficulties about keeping that coalition going, but for today, it is brilliant.
We have the question, “Are human rights universal?” Yes they are, because that is how you define them. They come in various shapes and forms and the irreduceable minimum it seems to me is the human rights which are internationally acknowledged which your country has signed up to and which anybody of any sense agrees you must follow, either if you want to, from principle, or if you don’t want principle as the basis – then just pragmatically. Those, for us, are in the European Convention of Human Rights.
We should begin by acknowledging that we wouldn’t have this debate about rights and civil liberties, if we didn’t have the Human Rights Act. It was an enormous achievement of Labour’s first administration to bring this Act in, and as someone who has described himself now as a rights lawyer since 1973, when I called myself a welfare rights lawyer, the difference the incorporation of the European Convention has made is huge. My view of what human rights are is that they are liberties with teeth. The teeth are due to the fact that you incorporate these rights in ways which judges will enforce.
If you went to the session with the Conservative party politicians, it was rather interesting that they each in a rather Marxist way, had a concept of the individual, the little person, against ‘the state’. I wanted to scream, “Hey, the state is a lot more complicated than that!” I began with welfare rights cases, then judicial review cases in the 80s, ending up with human rights cases. What I have seen as a practitioner in that time and observed as a citizen is that if there ever was a coalition around a ‘state’ in the UK, what is actually happening is that bits of it are floating up to the surface. It is rebalancing itself and one of the elements which is currently rebalancing itself is the judiciary. One of the first social security cases I remember was when an old judge called Denning said almost in these terms, “If this case had been about anything other than social security, I would have insisted on a fair hearing. But hey, this was a tribunal and the standard of ajudication doesn’t matter.” Of course the minute the Government began to use that disreputable argument, you know you had won. We were moving on through a whole series of ways in which incrementally the judges held the Executive, locally and centrally to account and developed mechanisms of accountability. It was a seamless extension from that point of view when the Human Rights Act came and the Executive of government was being held to account by human rights norms. The crux of the matter is accountability and we must recognise that the state isn’t one thing. Power in this society is held in various different places. The judiciary used to be described historically as ‘lions under the throne’. Now they are becoming ‘lions parallel to the throne”. I think there is a real challenge here for anyone who is democratically engaged, including politicians, to get Parliament up to the same level of equality with the powers of the Executive, because the defect of the UK Constitution in the words of Lord Hailsham is that it is an ‘elective dictatorship’. And how can you control an Executive when by definition, it is the element with the largest party in a still largely undemocratic Parliament?
The state is mutating and changing, and it seems to me healthy that in the past twenty or thirty years the courts have played a leading part in accountability. I have three examples of why human rights are universal, why they are a good thing, and why the role of judges makes a difference. Internment, in the 1940s we interned enemy aliens and someone wanted to challenge that on the grounds that he had been certified as an enemy alien by the Home Secretary and he just wanted an open process of certification. Judges sent him packing back to the Isle of Man. But this is a great contrast with the decision the judges took when they had to look recently at the position of people in Belmarsh: they took a different view. Take the DNA database: it went through Parliament. I did briefing after briefing saying that this extension of the database to cover those who had not been charged with anything was outrageous. Did they get anywhere? No. What will make the difference is that the DNA database will be brought back to something I can certainly live with as the judges said that those who have only got a conviction and are fully aware that the information is acquired for a particular purpose. Look at torture and the brilliant judgment. The common law position was that you could in civil cases look at torture-induced evidence. Judges said, “No, on human rights grounds we won’t hear evidence that has arisen from torture in any event.”
Two points arise. Firstly, a very positive point: we need to keep together civil liberties and human rights. It seems to me that the assertion that there is a difference between them just comes down to the method of enforcement. At one level, that is really important: but we have to hold this coalition together for as long as we can. Secondly, I have a note of caution beyond the extension of human rights beyond the European Convention. Personally I’m all for it. I want to be part of a discussion about a right to medical care which is enforceable by the judges as best we can. But – we can only have a British Bill of Rights that goes beyond the European Convention if there is political consensus about it and in a parliamentary democracy, that means cross-party consensus. For the present and foreseeable future, you can forget it. The issues are too over-politicised and there will not be consensus on what should be in a British Bill of Rights and for that reason, I would fall back on the irreducible minimum, the defensible redoubt, the unassailable redoubt. I would hold to the European Convention and celebrate in a way that David Goodhart probably will not, the role of the judiciary in holding firm against invasion.
Geraldine Van Bueren: If we are going to help prevent the surveillance state that we have all been talking about today, we really have to make human rights more popular; and that’s not just a question of making it popular with Sun readers and Daily Mail readers – that’s a very patronising approach – we have to try and make them more familiar, recognising that some of them are very British indeed, including the forgotten socio-economic rights. It is true that socio-economic rights – by that I mean the right to the highest attainable standard of health care, the right to an adequate standard of living, the right to work, interestingly - are universal. But what has been forgotten is that these are rights that we have had from the medieval ages. While the focus has been on the Magna Carta signed by King John, two years later, his son, King Henry II, signed the Charter of the Forests containing what nowadays are regarded as socio-economic rights: to food, to water, and to an adequate standard of living. The only reason why the Magna Carta was called the ‘great charter’ was because it was longer in length, not because civil and political rights were supposed to be of a greater value than these. To adapt a British Conservative party slogan, I would like to see a return to traditional British values!
Britain also contributed to socio-economic rights formulation. It was British government officials who helped draft the Universal Declaration of Human Rights that enshrined socio-economic rights. It was British government officials who helped draft the international Covenant on Economic, Social and Cultural Rights, and it is the British Government who are involved in the drafting of the European Social Charter. We need, as Jack Straw might say, to think of a way of bringing them ‘back home’, to the home of the Charter of the Forests.
How would a British Bill of Rights work if it enshrined socio-economic rights? It would act as a safety net It would mean that people would be able to hold government to account when they declared that child poverty can be halved. Child poverty could be tackled through the courts if enshrined in law. If living conditions fall below the adequate, they also could be challenged. At the moment, the only way to challenge this under the Human Rights Act, is to allege that conditions amount to degrading treatment. What are we saying about British society if we are saying that we are content to let people’s standard of living, their dignity, fall to that level. ‘Degrading’ is not the benchmark of a civilised society. And these socio-economic rights would help. They would help the elderly in care homes. It would make it easier to receive life-saving drugs. For although these rights are recognised by the British Government, they havn’t been brought down into British law.
They ar not only court rights. Very importantly, they would operate as educational and preventative principles for a wide range of occupations, of people working in the public services, so that this really does help create a culture of rights, and crucially, prevent violations of rights. Many countries have found that widening the appeal of human riths in this way helps bolster democracy. I had the privilege of working in South Africa for five years from 2002 and have seen these rights used very effectively by the poorest and most vulnerable people in the community. This has had two effects: firstly, there has developed a great pride in and sense of ownership of the whole range of human rights. If an individual or a group claims rights of access to the highest attainable standard of health – access to a life-saving cancer drug, say – then it benefits everybody who is eligible, and instils a sense of community because socio-economic rights are based on the principle that ‘I am, because you are.’ Secondly, it helps change the face of the judiciary. Serving on the bench are those who have experienced poverty issues directly and this widens those who are willing to sit on the bench because they can see a role in helping to alleviate poverty.
But socio-economic rights are not only for the poorest countries. According to the Un Committee on the Economic, Social and Cultural Rights, the right to adequate housing includes a duty on the government to make mortgage finance available to those who wish to purchase their homes. So what it does is to turn what is currently a political discretion into an effective legal right. Europe has its own socio-economic charter pertinent for European countries. The revised European Social Charter is the sister-treaty of the European Convention on Human Rights and countries from Portugal to France, the Netherlands and Ireland have allowed collective complaints of their citizens to petition it for rights which have been denied to them, It has been very successfully used and implemented by the governments. These are not idealistic goals. They are rights which have to be progressively implemented according to the maximum available resources. Progressivley means less waste: funds being spent more efficiently.
So to better protect our human rights in this country. Firstly, we have got to consult widely, as Jean Candler said, on what should be in a Bill of Rights. We are falling behind a growing number of countries who are protecting their socio-economic rights – rights that are particularly important as we enter a deep recession. Secondly, the United Kingdom should be lobbied to ratify all the provisions of the European Social Charter, to enable us to petition on a wide range of economic, social and cultural rights where British courts are unable to deal with them. That is a very simple and a very speedy procedure. Thirdly, we should enshrine socio-economic rights in our British Bill of Rights. What we are asking for here is both traditional in Britain, and universal. In other words, this is simply joined up human rights.