1An important aspect of political developments in the UK since the elections of 2010 has been the attack on human rights, both in a general sense and more particularly in relation to the European Convention on Human Rights and its implementation by the European Court of Human Rights. Neither of these has engaged considered argument but the latter in particular has been less about human rights per se than a part of a broader Euroscepticism that wishes to distance the UK from European institutions in general.
- 1 There is nothing new in this rhetoric. It repeats, almost word for word that of the community deve (...)
2A second, and rather more obscure (because never explicitly articulated) consequence of government’s policy pronouncements would be the likely effect of the expansion of “localism” (in the guise of the “Big Society”) on the tradition of universal human rights. The “Big Society” was never more than electoral rhetoric despite the fact that the (now) prime minister called it his “great passion” and having lost all credence the government is now embarked on a strategy of forgetting all about it and hoping everybody else will too. However, some of the ideas that the Big Society represented – “localising power”, “redistributing power from elites in Whitehall to the man and woman on the street”, “a massive transfer of power from Whitehall to local communities”1 – remain worthy of consideration in relation to universal human rights as they have been understood and promoted in the context of state activity. In short, if some of the things the state both national and local traditionally has been responsible for (planning, education, housing, welfare, roads) were in future and in the name of localism to be placed in the hands of “local communities” there would be important consequences for human rights, not least in terms of identifying rights and duty holders.
3This paper will briefly examine the potential consequences of the UK distancing itself from the European Court of Human Rights (EC) and “repatriating rights” in the light of the Human Rights Act and of proposals for a Bill of Rights exclusive to and separate from the European Convention and then examine in more detail the consequences for human rights of “localising” powers and policies and vice versa.
- 2 The Prime Minister’s exercise of a veto on new Treaty arrangements in Brussels on 9/10 December 20 (...)
4Criticism of the European Court of Human Rights has come primarily from the political right (the home of UK euroscepticism) and has found voice in the Conservative part of the coalition government. (The other part has been noticeable by its silence)2. The nature of the criticisms suggest no consistent body of thought, but rather a petulant opportunism often based on trivial Court cases and (too often) a mistaken interpretation of them. They cut no ice in Europe.
5The principal criticisms are on constitutional grounds and claim that the EC has become a threat to parliamentary and national sovereignty. The Court, it is argued, has become over-ambitious, is meddling in matters that are the proper domain of a democratically elected parliament and has become a spur to “legal activism” (Raab 2009, Howe 2009, Hoffman 2009, Pinto-Duschinsky 2011, Tempest 2005, Loveland 2009, Marc Bossuyt 2010 (in interview, quoted by Smet 2010).
6In response to counter-claims that the UK was one of the key drafters of the European Convention and the first to sign it in 1952 (and could therefore lay as much, if not more claim to ownership than any other signatory) critics have argued that the EC has strayed so far from the Convention that what it does now is not what the UK signed up to. In large measures it is claimed, this is due to the increasingly detailed and trivial nature of many of the cases it deals with (Hirst v UK 2006, Singh and Others v UK 2002, Carnduff v UK 2004) which ought properly to be dealt with at national level. The Court does have problems of which the apparent triviality of some of the cases it deals with is one. But is far from being the most important and it has to be said that the “triviality” is what the UK press and some politicians emphasise at the expense of the underlying principles. Nowhere is this more apparent than in cases concerning asylum and immigration.
7Moreover, the two main reasons for the Court’s backlog of cases (160,000 at 2011) are the accession of several new countries and the unwillingness or inability of countries to deal with cases of the national level before any referral to Strasbourg becomes necessary. If the UK complains that the EC is dealing with cases that ought to be dealt with nationally, the Court would only too readily agree.
- 3 No full version of the speech exists and subsequent comments are based on a partial record contain (...)
8The Court is going through a process of reform to deal with its acknowledged problems (in addition to overload, these include new admissibility criteria, problems of subsidiarity and the use of the margin of appreciation) – see del Moral 2006, Buyse 2011, Council of Europe 2011, Council of Europe 2010 - and following the Interlaken High Level Conference of February 2010 (see Interlaken Declaration and Action Plan) has instituted a range of corrective measures more effectively to fulfil its function of correcting violations of the Convention and ensuring a common system of rights across all twenty seven states that make up its signatories. It is ironic under these circumstances therefore the UK is discussing the possibility of withdrawing from the Court by replacing adherence to the Convention (and repealing the Human Rights Act 1998) by a new UK-specific Bill of Rights. And it is doubly ironic that the new President of the Court whose three-year term of office began in November 2011 is British. Sir Nicholas Bratza has already defended the Court against some of the ill-judged (and ill-informed) criticisms levelled at it by politicians, the press, some members of the judiciary and other pundits in the UK and his Presidency tokens a less than easy ride for opponents. In an unrecorded speech he made before his Presidency3 but clearly indicative of what was to come Bratza spoke out forcefully against what he called “the vitriolic and – I am afraid to say, xenophobic – fury” of the UK government and press in their reaction to some Court rulings which, he said, was “unprecedented in my experience, as someone who has been involved with the Convention system for over forty years” (as cited in Wagner 2011).
9He went on to note that charges by politicians and the press in the UK that European Court judges were “unelected” (a charge that is intended to imply a lack of legitimacy, ability, and accountability on their part) were factually incorrect. Bratza noted that “it is governments that put forward lists of candidates to become judges of the Court and it is politicians in the Parliamentary Assembly who elect to the Court”. (Wagner 2011). And on the question of the triviality of too many cases – a charge made by the now Attorney General (Dominic Grieve) in a speech in 2009 - Bratza pointedly remarked that in 2010 the Court considered some 1,200 applications from the UK, of which 1,177 were declared inadmissible or struck out and only 23 – less than 3 per cent of the total - resulted in a judgement by the Court. Clearly, if fault is to be laid for Dominic Grieve’s assertion of triviality, it must be with the UK courts rather than the European Court of Human Rights.
10Judge Bratza also went on to make short shrift of claims that the Court represented a threat to UK sovereignty and paid too little respect to the judgements of the UK courts. Thus he noted “the Strasbourg Court has been particularly respectful of decisions emanating from courts in the UK since the coming into effect of the Human Rights Act and this is because of the very high quality of the judgements of these courts which have greatly facilitated our task of adjudication. In many cases, the compelling reasoning and analysis of the relevant case-law by the national courts has formed the basis of the Strasbourg Court’s own judgement” (Wagner 2011).
11The antipathy of the UK government and the press to the European system of human rights has more to do with petulant euroscepticism than sound reasoning about what form (if any) the protection and promotion of human rights should take in the country, as Judge Bratza’s remarks indicate. But there is also a deeper antipathy to the very idea of “rights” that manifests in opposition to the Human Rights Act 1998. The contents of the Act encapsulate those of the European Convention and it represents in itself a “repatriation” of human rights from Europe. It is in effect the UK’s way of implementing the European Convention domestically but it is still seen as an imposition from Europe and still allows of referral to the European Court. Hence the move towards a purely UK Bill of Rights quite independent of Europe. The Commission on a Bill of Rights is currently examining the possibilities of such a Bill. And yet, it has been argued that the UK already has a Bill of Rights in the form of the Human Rights Act itself and there is much truth in this insofar as the contents of any proposed Bill of Rights will not, cannot, be very much different from those of the Human Rights Act and the European Convention. Unless the proposed Bill of Rights is going to concentrate on domestic and contractual matters (that is, not a Bill of Human Rights) then all that need be said about human rights in the UK is already in place.
12When cases are brought before the European Court, they are always cases against the “state”, even when the alleged rights violation was not of the state’s doing. The reason for this is that before a case can be adjudicated in Strasbourg it must have exhausted all domestic remedies. In effect, the appellant is making a claim that the “state” has failed to effect a remedy (Edwards 2012). And the appellant is usually an individual or a group of individuals who are party to the case, have suffered the same violation, and are clearly identifiable in law. They have “standing”. Conversely, the allegation of a rights violation must be against a body also with standing which, in the first instance, need not be the state but has to have legal standing in the form of a company, corporation, a trust and so on. This arrangement works well enough when both appellant and respondent are clearly identifiable entities with legal standing, but where this is not the case (or is less likely to be the case) as would be the situation with the localisation of “power” or responsibilities, the arrangement will be compromised. The remainder of this paper therefore will examine the difficulties created for human rights by an increase of policy localism and the values it represents.
13Firstly it will be necessary to note some assumptions that will give form to what might otherwise be an unstructured debate. We shall assume that notwithstanding the current debates in the UK that when resolution is reached (withdrawal from the European Court, repeal of the Human Rights Act, a new Bill of Rights) the UK will, for the reasons argued above, still entertain something like the present content of the European Convention/Human Rights Act if only because there are just no alternatives in the domain of human rights.
14The second assumption requires that we put some flesh on the idea of localism in order that meaningful connections can be made with human rights. In essence, by “localism” (or perhaps more accurately in light of subsequent comments “parochialism”) will be taken to mean moving power (or again perhaps more accurately “the ability and wherewithal to do things) from the national and local states to local groups normally identified by geographical location. The vision of devolved power and localised provision of social and economic goods that are normally provided by the state(s) is one of which groups of like-minded people will organise themselves as “community groups” to provide welfare and other services to themselves and others, either from their own resources or from resources provided by the state. The usual assumption is that state resources so provided will be instead of and not in addition to resources provided through national programmes. Thus, local groups might set up their own schools, organise their own transport system, nurseries, support for the aged or start up new businesses. The added value of this kind of activity would be that the costs of state bureaucracy would be replaced by the energy and enthusiasm of local groups: ( big society schemes ) “ in the future would represent the biggest, most dramatic redistribution of power from élites in Whitehall to the man and woman on the street” (Prime Minister 2010).
15The underlying values of this form of localism (which may also be called “community values”) are those of voluntarism, mutuality, self-help, taking collective responsibility for welfare, taking control of their (the community’s) lives from the state and gaining independence from the state. It is these values dear to liberal individualism and communitarianism alike (Dagger 1997, Sandel 1984, Putnam 2000) that if promoted as significant alternatives to universal state provision of wellbeing in its broadest sense, may create a situation in which human rights, as they have been described above, will sit only uneasily.
- 4 In all but small particulars, the European Convention’s 18 articles concern civil and political ri (...)
16To demonstrate this likely consequence, it will be necessary, at some risk of arbitrariness to adopt a single conception of rights and one that most concretely demonstrates where conflicts with “localism” may arise. For this purpose the European Convention on Human Rights appears the most appropriate4.
17The values inherent in “localism” will not constitute a threat to the entirety of the rights covered by the European Convention and it is possible to narrow down the relevant rights to those contained in Articles 8 – 11 and Articles 1 and 2 of Protocol 1. These concern (in summary form) the following rights:
Article 8- the right to a private life and to a family life
Article 9 - the right to freedom of thought, conscience and religion
Article 10 - the right to free expression and to hold opinions
Article 11 - the right to peaceful assembly
Protocol 1 Article 1 - the right to peaceful enjoyment of one’s possessions
- 5 All the rights contained in these articles are “qualified” rights in that they may be qualified by (...)
Protocol 1 Article 2 - the right to education and to religious education5
18As noted earlier, the European Court of Human Rights in putting the Convention into effect assumes (because it has to) that claims of violations of these rights are claims against the state, because it is the state, at the end of the day that has failed to resolve them domestically. There are other assumptions built into the system which are of particular relevance to an analysis of rights and localism. Among the most significant of these are:
that rights are universal
that rights are identical for all
that claims of violations of rights are made by individuals (or direct parties to the claim )
that it is transparent who the claimant is
that the claimant has “standing” in that the claimed violation has happened to them and that they are recognised as having legal standing to pursue a case
that there must be a correlation between rights and duties (though for rather complex reasons the real violator may be subsumed within the concept of “the state”).
19It is these rights and assumptions of the European Convention then that could be compromised by a process of localism. But to demonstrate this it will first be necessary to identify those aspects of localism that feature most significantly in the potential conflict. Of the characteristics already noted, the most important insofar as human rights are concerned are the nature of local groups that replace the state in the provision and generation of local “wellbeing” and the values inherent in localism such as voluntarism, mutuality, self help and local sufficiency that have been noted above.
- 6 In this respect they would have some of the characteristics of a “community” about which the liter (...)
- 7 On the question of human rights and the corporate standing of groups see Edwards 2011).
20There are two concerns in relation to the groups that would step into the state’s shoes. One is social, the other moral. We can surmise that such groups would be voluntary and that this would largely determine their social characteristics. They would be relatively socially homogenous in terms of social class, economic position, ethnicity (at least in urban areas) and age. In addition to these, such groups would in almost all circumstances be geographically finite in that members would all be located in the same area6. Now, what is significant about these characteristics so far as human rights are concerned is that they are likely to conduce to other, non-social dispositions such as commonality of interests, a sense of identity, a parochialism that excludes the interests of non-members, and a concentration on single-issue interests that will tend to exclude broader considerations (see Rouner 1991, Poplin 1972). The moral concern about local (and parochial) groups is whether they can have corporate standing as described earlier. Are they the sorts of groups for example that can have group rights, (of some sorts) that can be claimed or contested in a legal forum (which could be, domestic remedies having been exhausted, the European Court of Human Rights7). Were this the case, it might create the possibility, and the risk, that local and parochial groups would come to view their particular interests as rights to be pursued where necessary through the courts and whilst there is a perfectly respectable argument for interest- based rights (Raz 1994, Edwards 2010), it will not take us far in the prosecution of human rights.
21Is an increase in localism and parochialism likely to affect human rights as exemplified by Articles 8 - 11 and Protocol 1 Articles 1 and 2? The answer to this in light of the descriptions of localism and parochialism given above must be a likely “yes”, both because of the social characteristics of local groups and because of the question of corporate and moral standing.
22Firstly, as we have noted, parochialism will almost invariably conduce to a strengthening of local (or group) identity and an emphasis on group interests (or self-interests) in conflict with interests held by other groups pursuing their own ends. Not only that but influential localism will also, on occasions, come into conflict with general interests. Taken together these factors will increase the likelihood both of violations and of conflicts of human rights. Because localism is the midwife to particularity of interests, different local groups pursuing their own and different ends, the potential for conflicts of interests couched in terms of human rights is considerable. Thus, we may speculate that increased group conflicts in the pursuit of competing ends could lead to situations in which the rights of group members to free expression and to hold opinions (Article 10) or their rights to freedom of thought, conscience and religion (Article 9) might be violated. The potential for increased disputes over religious observation and symbols or conflicts over land or building use might be considerable. In short, the more localism, the greater the potential for conflicts over rights.
23Secondly, the emphasis on group identity which is a necessary part of the pursuit of group interests will be facilitated by defining other groups (or the rest of society) as “excluded” or even hostile (see for example , Lloyd Warner and Paul Lunt 1942, Toennies 1940). The identity of one’s own group is defined in terms of the “outsideness” of others. This definition of others as “outsiders” can be a recipe for intolerance towards them and discriminatory behaviour in relation to them. And herein lies the potential for rights violations particularly in respect of attitudes and actions that impinge on private and family lives (Article 8), the peaceful enjoyment of one’s possessions (Protocol 1, Article 1) and the free expression of one’s opinions (Article 10).
24The third concern is less a matter of the characteristics of local or parochial groups as of their particularity. By their very nature, local and parochial groups must be the antithesis of universalism and human rights must be universal (else they cannot be human rights). There can be no such thing as local human rights (though there may be contract rights that exist and apply locally) and it is not possible to maintain and promote universal human rights on the basis of parochial interests.
- 8 In the case of the European Court of Human Rights of course, one party will always be the state.
25The moral question concerning local and parochial groups as we have noted is one about their moral or corporate standing in relation to the prosecution of human rights. If, for example, two local groups in pursuing their particular interests (perhaps in relation to single-faith schools, or the re-design of a shopping area or the construction of a mosque) come into conflict in ways that one group claims violates its rights by a second group, what in legal terms would be the standing of the groups if one were to pursue a claim of rights-violation against the other? What sort of entity would each represent in the legal system and would courts be able to entertain claims from them? We have already noted that one of the key assumptions of the European Court of Human Rights (indeed, like any other court) is that both parties to a rights violation claim must be identifiable entities with legal standing.8 Would local groups satisfy this requirement? It seems very unlikely unless they had in some way incorporated themselves into a legal entity. If they had not and in reality existed only as an amorphous group of people whose only “standing” was a set of common interests then they could not claim legal standing. Such a group would not be able to pursue rights claims such as have been discussed above and, just as importantly, they could not have assignable duties.
26Such a situation raises problems for our earlier discussion insofar as fears about an increase in human rights claims would be stillborn if the group concerned were not able, because of their lack of status, to pursue those claims. However we should not be complacent that such a situation would persist. The difficulties created for human rights by growth of localism and parochialism remain for the following reasons. Firstly, the disquiet over the effects on human rights is one about the moral standing in which human rights are held and potential harm to them in the future. If rights currently held against the state were in future to be claimed by one amorphous group against another (even if they could not, under present circumstance be prosecuted), the significance and grandeur of human rights would be diminished in local squabbles. Secondly, it is not at present clear what might be the extent to which local groups could, and would incorporate themselves into some form of legal entity and nor is it clear whether individual members of local groups who can make claims of rights violations would or could do so on their own behalf but representing the interests of the group of which they are members.
27There is a final uneasiness which represents the moral reverse of these arguments. It relates to duties. There is a co-terminous relation between rights and duties as we have noted. The state has clearly defined duties to its citizens and claims of rights violations against the state are claims that those duties have not been fulfilled. Local groups have no duties to other groups and one group cannot claim that another has failed in its duties to honour its rights. A group may feel that its rights (or more properly, the rights of (some of) its members) have been violated but since amorphous, unincorporated groups can have neither rights they can claim nor duties they are morally bound to fulfil then in the absence of incorporation or “representative” individual claims, there remains the danger of genuine rights violations remaining uncorrected amidst groups pressing their own interests.