Protecting rights: how do we stop rights and freedoms becoming a political football

This pamphlet is based on a speech given by  Francesca Klug at the Convention on Modern Liberty in 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.

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.”

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.”