CEPOS and external lecturer of international human rights law at the University of Copenhagen. His recent paper The War on Capitalism: Human rights, political bias was published by the Adam Smith Institute in June.
The Conservative proposal to repeal the Human Rights Act and replace it with a British Bill of Rights is a sound idea. There is an urgent need to counter the influence of the revisionist and unilateral activism of the European Court of Human Rights at the domestic level.
When the United Kingdom ratified the European Convention on Human Rights, its language and drafting history clearly envisaged the Convention as protecting against authoritarian and totalitarian practices. The Convention therefore included only classic civil and political rights and freedoms that protect the individual freedom of citizens and ensure that coercive state action be justified and based on the rule of law.
This understanding of human rights owed much to British efforts during the drafting, and was in line with the British concept of freedom as pertaining to individuals and limiting the role of the state – a concept very much shaped by English historical developments such as the Glorious Revolution and the 1689 Bill of Rights.
It was these developments which inspired the American Declaration of Independence and its insistence on inalienable rights, which in turn would serve as the impetus towards the constitutionalization of the West, securing an unprecedented level of freedom and prosperity for Western Man.
However, the Convention’s original understanding has been radically altered by the interpretation of the Court. The Convention now confers a whole range of positive obligations – which are nowhere to be found in the wording – on the ratifying states. Thus the Convention’s emphasis on individual freedom has been supplanted by an increasing focus on the government’s duty to provide services and guarantees in an ever-greater number of policy areas traditionally left to parliaments and governments.