Jacob Mchangama: A UK Bill of Rights should be the first step in a human rights (counter)-revolution

Jacob Mchangama is head of legal affairs the Danish think tank 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. 

Today, the right to privacy encompasses an obligation to ensure that privately operated airports and night clubs reduce noise pollution, the right to life entails an obligation to ensure that hospitals reduce infant mortality, and the prohibition against inhuman and degrading treatment obliges states to provide health care to certain illegal aliens.

Due to the Human Rights Act, the revisionist interpretation of the European Court has influenced British courts and thereby altered the traditional British notion of freedom and human rights. Repealing the Human Rights Act and replacing it with a British Bill of Rights based on classic civil and political rights and freedoms would counter the influence of the Court’s activism at the domestic level. Moreover, it would send a clear signal to the Court that the UK is no longer willing to accept the Court’s usurpation of powers that rightly belong to national parliaments nor the erosion and dilution of the freedoms included in the Convention. It is not unlikely that other nations would follow suit forcing the Court to change its course or lose its legitimacy.

However, British efforts on human rights should not be limited to a new Bill of Rights. Determined British leadership should also encompass the international level – particularly the UN – where the concept of human rights has degenerated even more than under the European Convention. For too long the West has stood idly by at the UN while a crucial Western concept has been bent out of shape by states and individuals who blatantly abuse the moral nature of human rights to serve their own often nefarious ends. 

The UN’s prime human rights organ, the Human Rights Council, is dominated by an unholy alliance of authoritarian states including the Islamic states of the OIC, Russia and China. This alliance has passed resolutions encouraging states to criminalize “defamation of religion” despite its mandate to protect freedom of speech. The Council has also consistently refused to condemn some of the worst human rights abusers in the world. Unfortunately, the EU’s stance has been timid.

Though the UK is not a member of the Council, Britain could have done much more to influence the Council behind the scenes. The UK’s lack of willingness to assert a principled stand on human rights at the UN was evident when the UK chose to participate in the UN’s antiracism conference Durban II, a conference which had Iran’s president Ahmedinejad as the opening speaker and whose outcome document includes numerous paragraphs with potential pitfalls for free speech. The UK's participation stood in stark contrast to other English-speaking nations such as the US, Canada, Australia and New Zealand, who chose to boycott the event, realizing that participation would legitimize a conference which had lost all credibility during its preparation.

There is also a need for the UK to lead Western resistance to the UN’s human right proliferation. While atrocities in countries such as Sudan and Zimbabwe are routinely ignored, the UN is enthusiastically pushing for full recognition of economic, social and cultural rights – such as the right to an adequate living and the right to social security. Far from protecting individual liberty and limiting government, these rights elevate a particular and collectivist vision of government to inalienable human rights status. Their content frequently emphasizes the importance of state involvement in the economy, increased public spending and the limitation or even abolition of free market initiatives.

The UN’s human rights proliferation even extends to climate change. The High Commissioner for Human Rights has issued a report which claims that climate change results in numerous human rights violations, despite the fact there is no free standing right to a clean environment and the obvious difficulties in determining whether a natural disaster is attributable to man-made activities or a natural phenomenon.

These developments severely undermine the purpose and credibility of human rights.  They also institutionalize a vision of society based on a collectivist political agenda, and turn special interest positions into trump cards to the detriment of competing policies. Policies based on economic freedom, the importance of a market economy, limited government and personal responsibility are particularly vulnerable if this development gains a foothold at the domestic level.

That this is a real risk is witnessed by the Joint Human Rights Committee’s endorsement of economic, social and cultural rights, as well as the government's fuzziness about the inclusion of such rights in future constitutional reform.

In this context, British leadership on human rights could serve as a much-needed counter-revolution, restoring respect for individual freedom and the rule of law as the cornerstones of human rights policy.