Sadiq Khan announced this week that Labour will seek to shift power back to British courts after a period of perceived deference to the European Court of Human Rights in Strasbourg. He also mounted a vigorous defence of the European Convention on Human Rights and the Human Rights Act as ‘core to what we believe in as a party’.
These two lines of argument reflect an important dilemma that we in the Labour party face. We instinctively support human rights, which are synonymous with core Labour values like equality, universality, and solidarity. We are proud of our achievement passing the HRA in 1998. But we also see our human rights framework struggling under the pressure of a hostile media and a sceptical public. How do we stay true to our convictions while addressing the hostile discourse surrounding human rights?
With the Tories pledging to scrap the HRA and possibly pull out of the ECHR, it is up to us to develop a convincing narrative that will swing public support behind our own instincts. Many devoted supporters of the HRA and ECHR would have us simply arguing for the status quo, but we know that will not do. People are too confused about our human rights framework. They do not understand it, they do not own it, and they do not think it benefits them, and this despite overwhelming public support for human rights in principle.
So Sadiq Khan is right to argue for reform. He is right to look for ways to ensure public support for the system, because without support, ownership, and legitimacy it cannot endure.
His specific proposal that British courts should be instructed to use their freedom to diverge from Strasbourg judgements should not be controversial. It is already an established element of our framework that British judges should interpret Strasbourg rulings with reference to British traditions. Similarly, the Strasbourg court has to exercise respect for national traditions when it makes judgements about cases in specific countries. This flexibility helps to ensure the acceptance of a system that has to be applied to many diverse countries and cultures. Khan is simply suggesting UK judges need to be more confident in asserting this principle.
Ultimately, though, this kind of proposal probably is not going to be the magic bullet that enables us to win the public over. Khan should not be afraid to go further with the reform agenda. There are many innovative proposals that could help win public confidence in the system we urgently wish to protect, from adding new rights into the HRA, particularly those most relevant to people in their everyday lives like the right to healthcare, a home, and education, to embedding the Human Rights Act more deeply and explicitly in British legal traditions like the right to trial by jury and habeas corpus, and even expanding its scope to cover private companies that deliver public services. There is a whole range of possibilities for positive reform.
For the Labour Campaign for Human Rights, the best test for any reform is that it strengthens rather than diminishes our human rights framework. Various proposals circulating in Tory circles, including the odious suggestion that different categories of citizen should be created to allow for different levels of applicability to different people in society, clearly diminish that framework. Khan’s proposal does not.
Some people, many of whom are our trusted partners, are concerned about change because they fear it will be a Trojan Horse for undermining our human rights. They are right to be concerned, and we all need to study proposals for reform closely and carefully to make sure that does not happen. But nor should we let our concern get the better of us when bold action could be the best bet for the long term survival and success of our human rights system.
Andrew Noakes is chair of the Labour Campaign for Human Rights. He tweets @Andrew_Noakes
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