Mazin Zeki on the complexities of conflicting rights
Human Right: The Case for the Defence by Shami Chakrabarti pubished by Allen Lane
Chakrabarti responds to left and right critiques. As director of Liberty she opposed Labour and Tory governments. She then joined Labour and was briefly shadow Attorney-General under Corbyn and accepted a peerage. There is certainly a right-wing argument against human rights but it is not the same as a repudiation of actual human rights. There is equally a strong left-wing critique. The arguments are substantially the same. Both believe (for different reasons) in the primacy of the domestic political process not international conventions. It is a democratic defence of decisions made by a democratically-elected legislature against the overbearing power of judges who may have too much power without a mandate. These tensions are avoided by Chakrabarti.
The Human Rights Act 1998 was preceded by the influential Three Pillars of Liberty by Klug, Weir and one Keir Starmer who has maintained silence since.. The Convention on Modern Liberty launched with fanfare in 2009 brought together activists from across the political spectrum but crashed into irreconcilable differences within two weeks over rather trivial issues. Chakrabarti strangely omits all this. It would be difficult to recreate such an initiative now. She refers to all the classics of political and legal theory but readers may find the exegesis rather thin. Progressives instinctively support human rights and opposition is usually conservative and the attacks are multiplying. But most polemical attacks on sex-based rights, free speech and Equality and Human Rights Commission come from within the human rights community. Increasingly public authorities and mainstream parties are openly flouting rights and equality legislation. Allegedly for exceptional reasons. This development cannot be overcome by optimistic sloganeering. Former Green deputy leader Dr Shahrar Ali recently won a legal case against his party.
Many issues have no united left/progressive position amidst increasingly contested ideas. Human rights has evolved in uneven directions which could not have been intended after policy capture by vociferous but unrepresentative groups, which created internal dissension, for example within Amnesty. Demands for special attention or state intervention on the basis of identity creates conflict and undermines the abstract universalist human rights agenda principles needing wide support. The argument that rights must be delivered differently on the basis of identity to ensure equality should be treated with caution. Human rights become human wrongs with a number of ongoing internal conflicts being tested in courts. When taken too far the separate discourses collide and discredits the universalist culture of human rights which cannot be only law-based. Unsatisfactorily many cases have been decided on legal technicalities alone.
Chakrabarti’s weakness is a reliance on emotive “moral high ground” with arguments not developed for battles ahead. The homiletic tone cannot disguise the thin arguments presented. It could be argued that many rights have been undermined since HRA was passed by New Labour. It also created ten criminal offences per day in office. The criminalisation of society is not compatible with human rights. The Human Rights Act had an impact on administrative law but has not adequately strengthened the protection of rights and liberties. Issues not covered include Post Office and haemophilia victims scandal, the erosion of protest rights under Labour and Tories, Grenfell, Simple Justice Procedure, tenure-based law, anomalies in sentencing, miscarriages of justice, increasing problems of ensuring fair trials in social media age, access to law, dangerously deepening inequality. It is long-term essentially abstract intellectual consistency and coherence which will embed human rights culturally not just legal action. Rights must mean more than demands for intervention from the state and its derivative institutions. And remedies cannot only be legal.
Unfortunately, advocates are moving towards special attention for identity groups which morphs into a hierarchy of victimhood discrediting rights. Human rights are not the Panglossian magic solution drenched in moral superiority promoted by Chakrabarti. Many human rights champions (for “anti-oppression” reasons) also support a clampdown on free speech inconsistently. They defended the right to privacy and opposed facial recognition but have been silent on subjective so-called “non- crime hate incidents” being recorded without any legal basis.
The text is littered with typos and errors. The first legal code was not by Cyrus but Hammurabi in Babylon. She also gets some facts wrong. UNDHR was not primarily written by Rene Cassin but by Pan Chun Chang and Dr Charles Malik. This was confirmed by the late judge Tom Bingham. The numerous acknowledgments would have indicated a rather weightier tome than this meagre cut-paste offering. They include many political figures who “supported” rights but voted for legislation which undermined them. Students of Labour politics will be familiar with this. Tory Baroness Sayeeda Warsi compared murderous ISIS fighters with International Brigades in Spain – a view one would expect Chakrabarti to condemn. The International Brigade Trust has. Enough said.