I listened with great interest to the latest issue of Law Pod U.K., which never fails to demonstrate the great truth that intelligence, education and commonsense do not perfectly overlap.
This time around, the eminent guests were debating the U.K. Bill of Rights Bill, which is back on the legislative agenda after having been briefly shelved last year. The contents of the Bill aren’t particularly important for the purposes of this post; suffice to say that the idea is to repeal the Human Rights Act 1998 and, in essence, to shrink the influence of human rights on U.K. law in most areas, but chiefly when it comes to the topic of immigration and deportation.
Human rights advocates hate the idea of the Bill of Rights Bill. They hate it because it will disrupt their practice and make it more difficult; they hate it because they envisage themselves as part of a global constitutionalist project to construct what they often call a jus commune of international human rights norms and believe that repeal of the Human Rights Act 1998 would threaten their participation in it; and they hate it because they (probably justifiably) sense that it threatens some of their favourite causes – open borders and migration being one of them.
And, to give the devil his due, their arguments do have force in certain respects. While I have little sympathy with the global constitutional mindset that animates these people, my basic inclination is to look with suspicion on any attempt by a government to expand its scope of action in any regard – and, since the Bill of Rights Bill will likely have that effect, I am prepared to give sceptics a fair hearing.
But by God they make it difficult. Listening to the podcast, and also imbibing the general atmosphere in human rights circles, one hears all kinds of strong rhetoric about the threat the Bill poses to fundamental freedoms. According to the Law Society of England & Wales it will be a “lurch backwards for British justice“; the Parliamentary Joint Committee on Human Rights have said it will “create large scale uncertainty and seriously damage people’s ability to enforce their rights“; Shamim Ahmad of the Public Law Project even said on the podcast in question that talk of the U.K. withdrawing from the European Convention on Human Rights (which is being mooted alongside discussion of the Bill) would be like “crossing a Rubicon”. This kind of apocalyptic language is par for the course whenever the Bill of Rights Bill comes up.
Listening to all this, one has to ask oneself how it is that these people can be so naïve? Didn’t they get the memo in March 2020, when the Government was by decree making it a criminal offence to leave one’s home without reasonable excuse, that human rights basically don’t matter when the chips are down? Didn’t they hear that freedom of conscience, the right to liberty and the right to non-discrimination are irrelevant when it comes to the unvaccinated? Weren’t they informed that freedom of expression is contingent on speech not being ‘harmful’? Didn’t they discover during 2020-21 that basic freedoms go out of the window when the Government wants to ‘keep us all safe’?
What were the Law Society of England & Wales saying in March 2020? Er, blogging some ‘excellent tips’ for working from home. What was the Public Law Project up to? “Accepting the Government’s rationale” for the Coronavirus Bill 2020. What about the the Parliamentary Joint Committee on Human Rights? It was scrutinising the Government’s exercising of ‘unprecedented powers’ in order to ‘keep us safe’ (by… checks notes… quizzing Robert Buckland MP about things like the right to family life of mothers in prison, the rights of young people with autism, and the protection of privacy during contact tracing – all important issues no doubt, but pretty much the dictionary definition of tinkering around the edges). What was the U.K. Human Rights Blog, voice of the human rights lobby in this country, up to? Mouthing platitudes about “unprecedented times” and the “serious challenges to society” the pandemic posed. How about Law Pod U.K. itself? In between discussing the complexities of the Brexit transition period and something-something vicarious liability something-something, it was inviting a PhD candidate at the European University Institute in Florence to tell the listeners (prior to the announcement of the full U.K. lockdown) that “human rights law continues to apply” even during pandemics, so as to set “very minimum standards” such as protecting really vulnerable people, making sure there was no discrimination and making sure any measures were not in place indefinitely. Cheers for that, Law Pod.
These people, all no doubt highly intelligent and very learned, seem to know so little about human nature that a basic feature of it never occurred to them: if you want others to take your principles seriously, you have to defend them when they actually matter. Otherwise, society (usually correctly) concludes that they aren’t genuine principles at all, and you’re just referring to them when they suit you.
This is the position in which human rights advocates now find themselves. When the chips were down, their defence of our freedoms was to all practical purposes non-existent. Now they are asking ordinary people to care that the Government is apparently planning to water down domestic human rights law. They should hardly be surprised to discover that this argument doesn’t have a great deal of purchase – nor that, to the great bulk of the country, human rights advocates are perceived only to care about human rights when it comes to migrants (you could probably throw in criminals as well) and couldn’t really give two hoots about the general population. People like our friends at 1 Crown Office Row and the Public Law Project would be on a much firmer footing with their criticisms of the Bill of Rights Bill if they had spent the last three years going out to bat for the rights of the citizenry at large. Instead, the impression they’ve created is that rights only matter to them when it is politically expedient and relate to one of their hobby horses, like the rights of illegal migrants. Not many people are as well-educated as Professor Jim Murdoch or Angus McCullough KC. But they’re not thick, and they know the scent of a rat when they smell one.
Dr. David McGrogan is Associate Professor of Law at Northumbria Law School. This article first appeared on his Substack page. Subscribe here.
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