Confronting the Human Rights Act 1998

Contemporary themes and perspectives

Nicolas Kang-Riou, Nicolas Kang-Riou

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136335143
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book critically examines the Human Rights Act 1998 (HRA) and evaluates its impact from a multi-disciplinary perspective. The book includes both a domestic and international analysis of the effectiveness of the HRA, and also considers possible future developments in policy and practise as well as contemplating the potential for a British Bill of Rights. The editors have collected pieces from contributors drawn from diverse spheres, all of whom are internationally recognised for their impact in the field of human rights law. Contributors include members of the bench in the United Kingdom and Australia, academics, researchers, members of NGOs, and campaigners as well as people's testimony of lived experiences in relation to the Human Rights Act. Valuable contributions from the likes of Costas Douzinas, Keith Ewing, Helen Fenwick, Lady Hale, Irene Khan, Michael Kirby, Francesca Klug, Peter Tatchell and others have resulted in a book which draws out the connections between legal framework, theory, and the actual experience of the protection afforded to groups and individuals by the HRA.

Confronting the Human Rights Act 1998 will be of particular interest to scholars and students of Law, International Studies and Political Science.

1 Confronting the Legalization of Human Rights

A Counterpoint

Nicolas Kang-Riou

Introduction

Only when the last prisoner of conscience has been freed, when the last torture chamber has been closed, when the United Nations Universal Declaration of Human Rights is a reality for the world’s people, will our work be done.

Peter Benenson, Founder of Amnesty International¹

Human rights are historically new, emerging within the Enlightenment, but at the same time we cannot seem to be able to do away with them. They are now claimed and deemed to be universally applicable, East and West, North and South, even though they depend on the culture where they are implemented. If the debate of universality is still alive, the question of the importance of implementing human rights law is no longer disputed in Europe, at least in the mainstream political arena.² All 47 members of the Council of Europe³ had to ratify the European Convention on Human Rights (ECHR)⁴ and accept the European Court of Human Rights (ECtHR) as its supervisory body with the individual right of petition.⁵ Furthermore, the ECHR has now been legally implemented into the normative framework of all Member States, the Human Rights Act (HRA) marking the end of the UK exception. Thus, there is now no dispute over the applicability of human rights law in Europe.

However, the discourse comprises many contradictions. A short step back into the history of human rights law reveals a foundational one.⁶ The Preamble of the ECHR declares the signatory States to ‘have a profound belief’ in ‘fundamental freedoms which are the foundation of justice and peace in the world’, in ‘political democracy’, and in ‘the rule of law’. Clearly, these three elements are mentioned in order to describe an idea of freedom as resistance to oppressive regimes, such as the ones which emerged in the first half of the twentieth century in Europe.⁷ There is a paradox here. If human rights embody an idea of empowerment and resistance to oppression, they also state an aim to attain a utopia⁸ where human rights would be respected along with peace and justice. It is thus ‘non-law’, as it is a name used for mounting challenges to legal and political exclusions. However, these utopian ideas have been legalized. So now, simultaneously, human rights are part of (positive) law, in the way they are used within the legal system to decide claims, but are still the vernacular used to argue that the (positive) system is deficient, as it still does not (and cannot) fully protect human rights. This ambivalence makes the discourse really politically appealing.⁹

The quotation from Peter Benenson, at the beginning of this chapter, is a clear expression of the contradiction that is still at the heart of today’s discourse about human rights protection. The first two elements can be decided by courts: communicating the illegality of an arrest or the illegality of the use of torture. The consequences should be to free the prisoner and close the torture chamber, which has more or less been done, in Europe at least. The last part is the (truly) utopian part. So, at the heart of human rights lies this tension between the world of freedom, equality and dignity established through law, and the world in which we live and which we would like to change. In order to explore this original contradiction, we need to look first at some of the structural effects that the legalization is having on rights.

A Confrontation and a Counterpoint

A confrontation can be defined as a ‘focused comparison’,¹⁰ an attempt to bring several elements face to face,¹¹ but also as an attempt ‘to present a bold front, to stand against, oppose’.¹² Two main dimensions are thus established: to compare and contrast, and to oppose what keeps situations in the dark, thus revealing what is left unwanted or excluded.

The first strand is quite traditional. This can also be done in order to evaluate any piece of legislation. It is always useful to contrast the aims and purpose of the legislation with the way it has been implemented. In this approach, negative and positive elements can emerge. With the HRA, we can look at its implementation and decide which changes can be seen as positive or negative. The commitment here is to an insider view, to the traditional way to represent legal change and especially human rights law, as part of ‘bringing progress through reason’¹³ or, at least, an attempt to bring progress. It is a firm but gentle confrontation.

The second is much more critical. Through the multi-disciplinary approach, law is reintegrated in its social context, and human rights become human again. Issues of legal interpretation and application are questioned, such as the lack of convincing explanations as to the foundations of the choices made, the politics of the law, and also through the structural issues of the elements taken out of the law. This position mainly comes from experiencing the gap between the proclamation of rights and their daily experience, and trying to see what role the law is playing in creating or maintaining the gap.

In music, a counterpoint is the ‘melody added as accompaniment to a given melody’.¹⁴ But to see the counterpoint, the main melody has to be set. Thus, a contrapuntal approach brings the main and additional melodies side by side, hoping to create something new through the combination, something other than the simple juxtaposition of the two. By bringing together the internal dimension of the law (the ‘standard’, ‘positivist’ view of the (human rights) law) with the external (the socio-legal and critical), there comes a counterpoint.

The Human Rights Act 1998 is the main legal tool for arguing a violation of human rights within the UK legal system. There are good reasons to celebrate over ten years of implementation, as it has fostered decisive changes in many individual situations, as many of the contributors to this book argue.¹⁵ Nevertheless, it is impossible to simply draw a rosy picture due to structural issues undermining the protection of human rights through the legal framework highlighted by many of the authors in this book.

This chapter will try to explain why although the tensions of the human rights discourse cannot be removed, the usefulness of the discourse can be kept, if the exclusions from the discourse are continuously challenged and the discourse rewritten.

The Legalization of Human Rights

(L)egal reasoning … is now virtually the only possible way of working within the conceptual field of human rights.¹⁶

It is clear from the history of the implementation of the ECHR, and from the other international treaties, that as soon as they came to be supervised by treaty bodies, the controlling language became the language of lawyers. The first reason is simple: arguing rights violations, the legality or illegality of actions, is what lawyers do. The language of law is based upon this binary distinction, this code of legality and illegality. The second is a consequence of the first. Lawyers came to populate such bodies¹⁷ as a requirement of treaty interpretation, again formulated and thought of as an issue of the definition of legal rights. The legal doctrine became the prominent voice in order to analyse what the former were doing.

It is quite easy to find evidence of the domination of lawyers in the human rights field, and not only within legal presentations. There is numerous external anecdotal evidence of this. For instance, such domination is completely embedded in how publishers present human rights research. Human rights are largely found under their own heading within the law subdivision.¹⁸ This evidence is from the perspective of the market: publishers ought to know who is going to buy, and where from. This does not mean that non-lawyers cannot publish academic books on human rights; they just won’t own a human rights category. For instance, the recently published Sociology and Human Rights: New Engagements¹⁹ finds itself in the ‘Sociology and Social Policy’ subject area, not in ‘Human Rights Law and Civil Liberties’.²⁰

Another sign comes from the NGOs. The most visible human rights NGOs in the UK (Liberty, Amnesty International, Justice, the British Institute of Human Rights, Interights, etc.) are led by individuals with a legal background,²¹ with the notable exception of Amnesty International.²² One could also point out that masters programmes in human rights are, in the main, led by lawyers and taught within law schools.²³

As mentioned above, the legalization is more structural. The choice of legal institutionalization was made first at the UN with the Universal Declaration on Human Rights (UDHR), then in the Council of Europe, following the hints given by the UDHR. And as soon as rights were to be adjudicated upon, lawyers were bound to get the upper hand. In Europe, it is clearly the Strasbourg judges, along with the highest national courts, who are setting the tone of what constitutes a human rights violation. As a consequence, the dominant vernacular of human rights is the legal discourse. The alternative ways to see the problems, the administrative/political and the sociological, are not construed as being necessarily relevant to the issues at stake. Non-legal arguments can influence or be part of the legal justification, but ultimately the judge decides exclusively on what s/he perceives the legal arguments to be.

The domination of the legal discourse on human rights has been enshrined in the UK through the Human Rights Act 1998. It has, in the same way, redefined the balance between politics and law as to how best to protect and guarantee human rights, with a further push towards law. It is this domination that will be confronted with a contrapuntal approach, as this domination leads to many exclusions. The limits of human rights law have been tackled by numerous authors in some challenging and groundbreaking pieces.²⁴ Here, I would like to focus on some elements.

Human Rights and System Theory

The domination of human rights by the legal profession has given rise to some very particular effects. Luhmann’s description of law in terms of the social system theory is a powerful means of understanding the role of human rights within it.²⁵ Law, as with any social system, distinguishes itself from other social systems, like politics or media, through its own vocabulary, and the way the system looks at itself.²⁶ The vocabulary of the law, its syste...