"Championing the values of Human Rights", London 2003
Yvette Cooper (Labour)
Thank you. It is a pleasure to be here this morning at Liberty's conference. Can I thank John Wadham for the invitation to speak today and thank Liberty too and many of the people in this hall, who have done much to support the Lord Chancellor's Department in its work on promoting information about the Human Rights Act, and more broadly a human rights culture.
It is a great pleasure to have the chance to talk about the human rights act. I'm not a lawyer, I talk as a politician. And from the point of view of politics, I believe that the Human Rights Act will be seen in retrospect as one of the most radical acts of the first term Labour government.
Just three years old, the Human Rights Act embeds in British law the European Convention on Human Rights that came into force fifty years ago this year. The passing of the human rights act was an immensely significant constitutional change. It set out in British law a core set of values and standards based on respect for the dignity of all human beings against which other laws and the decisions of the state must be judged.
It is worth recognising how far we have travelled.
Many of those here today have played a crucial part in the journey over the last ten years. Working with John Smith, Paul Boateng and Jack Straw in opposition, and after the election, working on the Human Rights Taskforce, and developing a very sophisticated constitutional settlement to combine human rights with Parliamentary democracy.
Many of you will have experience of the impact of the Human Rights Act on the courts. I have seen the impact on the way Government and Parliament work. I can tell you from personal experience that the Act has had a huge impact on the way government policy is developed. Debates in cabinet committees focus on whether measures are proportionate. Ministers have to sign section 19 statements on the compatibility of new measures with our human rights. And the Joint Committee on Human Rights means Parliament engages in detailed scrutiny of the human rights implications before legislation is passed. In other words, long before the courts ever get a look in, Parliament and government measure policies against a framework of values and standards.
But the Human Rights Act and the approach it takes are far from embedded across society at this stage. In fact quite the reverse. The misconceptions about the Act are many. The hostility towards the Act in some quarters is considerable. We need to challenge those misconceptions and champion the values underlying the Human Rights Act. For if we do not, bluntly, we risk creating a climate in which a future reactionary government can get away with pulling out altogether.
This morning I want to argue that the Human Rights Act, far from being an individualists charter, is a vital part of helping a modern democratic society sustain the right balance between respect for the individual and support for the communities on which we all depend. Secondly that the human rights act, far from being a threat to democracy, is a vital underpinning for the institutions that preserve democracy. And thirdly that if we are to promote a "human rights culture" we need to seize the debate about human rights back from being the sole preserve of lawyers, and put it in the context of wider debate about the values we all of us share.
Individuals and Communities
Some have argued that the Human Rights Act and the European Convention on Human Rights (ECHR) are classical liberal documents designed always to champion the freedom and autonomy of the individual against the overbearing community and the oppressive state. Put less charitably they are regarded as selfish individualists charters that promote peoples expectations of unconditional entitlements from the world.
Now I believe critics are right to be concerned about too much talk of rights without responsibilities, individuals without communities. People's interests and rights conflict, they need to be balanced against each other, and the state, can often be the only way to protect people against harm and oppression from each other, or provide them with the opportunities they need. To respect their rights, we all as citizens have to recognise the parallel duties and responsibilities that flow. There are serious dangers in always championing the needs of the individual at the expense of the communities on which those individuals depend. The truth is that human beings are dependent for everything that is valuable on communities and social life.
Many of the communitarian criticisms of the simplistic liberal account of rights are extremely important. But they are also obvious. And they are completely misplaced as criticisms of the Human Rights Act and the ECHR.
The Human Rights Act and communities
The Human Rights Act and the ECHR are arguably communitarian documents in many ways. Too often people concentrate on the 'Rights' dimension of Human Rights, rather than the 'Human' dimension. Too often people concentrate on the caricature, rather than the reality that lies behind it.
For a start many of the rights reflect the need to ensure that people can exist as social beings, the right to respect for private and family life, of peaceful assembly and freedom of association, to practice religion in community with others.
These are not selfish individualist rights. These are about safeguarding peoples' ability to build and form the fundamental relationships which hold society together. Deprive us of our families, our communities, and any capacity to build family or social relationships and you deprive us of much of what it is to be human.
Secondly, the Human Rights Act reflects very clearly the need to balance one person's rights against another, and to balance individual rights with community needs. Most of the rights set out are either conditional or qualified in some way or other and many of those qualifications reflect the legitimacy and importance of safeguarding others and entire communities too. Restrictions on many rights are justified in the Act if they are needed, "in a democratic society, in the interests of national security, territorial integrity or public safety, for the protection against disorder or crime, for the protection of health or morals, for the protection of the rights or freedoms of others."
So for example, it is right that the government should be able to ban tobacco advertising in the interests of public health. Equally governments can act to protect people from terrorism whilst recognising the consequences for freedom. Indeed the Courts have endorsed a series of measures to protect society against terrorism, crime and harassment that civil libertarians have opposed. Government has to strike a balance but the Human Rights Act ensures that balance is properly scrutinised and government is held to account.
The Human Rights Act has a strong communitarian element within it, much as that distresses libertarians. Indeed some on the libertarian right have criticised the Human Rights Act because it is not a purists freedom charter in the classical liberal tradition.
As Francesca Krug has argued, the emphasis on the value of community and the importance of reciprocity have long been part of the human rights tradition.
Human Rights Act and justice
But ultimately the human rights tradition diverges from strong communitarian philosophies and a good thing too. The Human Rights Act and the ECHR will not allow communities - or governments - to ride roughshod over individual rights in the pursuit of the majority view.
Some rights remain absolute, such as the right to be free from torture. And even where rights are qualified, restrictions must be justified, proportionate and lawful.
For some this still goes too far. They think anything which imposes conditions on the decisions of the community in the interests of an errant individual goes too far. Some, I fear, overreact to anxiety about the fragmentation of traditional communities and declining deference and believe that anything which prevents well behaved majorities telling unconventional minorities what to do is the cause of all the problems in modern society.
Yet safeguards for individuals against unjust and oppressive community decisions are vital in a modern democracy and we should not be afraid to defend them.
Too often communitarian opponents of human rights romanticise communities. But some communities are unjust and oppressive. So we need to beware that the values rightly attached to communities don't blind us to their weaknesses, and lead to lower tolerance and lower priority being given to any form of protection for individuals at all.
Promoting a human rights culture is about respecting the balance between respect for individuals and the needs of communities. The Human Rights Act provides a framework in which democracy can sustain that balance in an open and just way.
Human Rights and Democracy
But a human rights culture is also important to underpin democracy itself.
Some have argued that the Human Rights Act undermines democracy, pitting the courts against Parliament, Judges against elected politicians and ministers. Others have claimed it doesn't go far enough and that it should emulate more traditional liberal Bills of Rights and give judges much more power. I disagree with both views.
But the truth is that the human rights act establishes a sophisticated relationship between the courts and Parliament which reinforces democracy for important reasons.
For a start, healthy democracy and respect for human rights go hand in hand. The origins of the European Convention lie in the determination of the members of the Council of Europe to safeguard not just the veneer of democracy but the fundamental values and institutions that underpin a healthy democracy too.
We too need checks on what we do in the interests of democracy - to ensure we do not lose sight of the core values that underpin our democracy, and that we don't forget the most important things in times of stress and insecurity. We need checks too, to ensure that an overhasty majority does not trample over the views and the legitimate rights of minorities, and checks that we live up to the standards we have ourselves signed up to.
But equally, the debate on human rights needs to strengthen democracy not impoverish it, and ensure that the important arguments about competing values and interests are held in Parliament, not simply in the Courts.
That is why the Human Rights Act sets out a sophisticated relationship between the courts and Parliament in order to safeguard Parliamentary democracy and the British constitutional tradition.
The Human Rights Act was carefully designed to support Parliamentary democracy. It operates very differently to the US bill of rights. Should the courts decide that a new law passed by Parliament falls foul of the right to freedom of association, for example, it cannot strike that law down. It can reinterpret law within the margins to make it compatible. But on major questions of disagreement, Parliament must decide how to respond. It can amend the law rapidly to implement the court's decision. It can go back to the drawing board to find another way to achieve its original intention. Or it can even choose not to act at all.
It is a huge strength of the Human Rights Act that elected representatives get the final say.
Ultimately applicants can still take their case to Strasbourg just as they have been able to for decades. But the Human Rights Act itself has not taken power away from Parliament. Instead it has made the UK courts a very public forum for judging the public sector, the government and Parliament by the standards Parliament set itself. And it has given Parliament the responsibility to decide how to respond.
The judiciary have responded to the complex nature of that dialogue between Parliament and the courts. The Lord Chief Justice has described the doctrine of respect or deference, particularly of cases which involve the balancing of rights against each other, or the balance between particular rights and community needs.
Of course there will be disagreements between the courts and Parliament, between judges and ministers. Of course individual judges and Secretaries of State will take different views from time to time about how the Human Rights Act should apply in a particular circumstance. We may all have different views on the appropriate balance between competing rights, or between a right and a relevant community need in a particular case. That is inevitable. But as politicians we can disagree with the courts' interpretation of individual cases whilst strongly supporting the act itself.
Creating a human rights culture
But we should recognise too, the limitations of the Human Rights Act. It cannot solve every problem for us, it is only the framework within which we have to resolve difficult arguments ourselves. Liberty's conference is right to concentrate not on litigation but on cultural change today. Creating a human rights culture means firstly tackling the myths about human rights, and ensuring debates about human rights address what it means to be human, rather than focusing on unconditional entitlements. It means promoting the idea of balance and fairness as part of a framework of core values. And it means taking those debates out of the sole preserve of the courts and lawyers. It means that lawyers and campaigning groups should welcome the role of Parliament and politicians in the debate. And it means Parliament welcoming the debate and the benefits of being judged in the courts against the standards we set ourselves.
The Human Rights Act, I believe, is a progressive safeguard for modern democratic society, based on the values of equal respect for human dignity.
It is also a precious thing. In times of insecurity and anxiety it will come under pressure, even though those are the times we need it most. Oliver Letwin, as Conservative Shadow Home Secretary has lamented the shift from freedoms accorded to British citizens, to the concept of universal human rights. And the Conservatives have pledged that a future Conservative government would even withdraw from the European Convention on Human Rights, and would amend or repeal the Human Rights Act too.
Should the Act ever be repealed in the future, it is the vulnerable who stand to loose most. And they are the gainers from effective human rights promotion - not through litigation but through a developing culture of human rights and responsibilities across the public sector and society too. When local services fail to protect young children against neglect and abuse, we fail to protect their human rights. When the dignity of the elderly in poor care is undermined, human rights are at stake. And whilst much is often talked about the human rights of defendants, Victim Support have seized on the human rights act to argue for improving respect for victims needs too.
It is possible to change the climate of the debate. When the Equal Pay Act was passed several decades ago it was hugely controversial. Now after decades of work by the Equal Opportunities Commission, no one would dream of repealing it. So Parliament's Joint Committee on Human Rights has argued strongly that human rights should be part of a new single equality commission - not to take human rights litigation, but to promote and champion the values of human rights across society. We need to consider their case. Because whatever we do, we need to strengthen support for human rights and responsibilities and the values of respect for human dignity across our society.
Liberty asked whether a human rights culture can save society. Respect for the values of human rights does support, rather than undermine society. But equally, we need to win support across society for the long term, to safeguard human rights.