Do closed-shop rules that require workers to join a trade union as a condition of employment violate human rights? Most ordinary people would balk at the suggestion, but the Strasbourg-based European Court of Human Rights thought otherwise, holding in a 1981 decision that such rules are contrary to the European Convention on Human Rights. The decision, and many others of the kind, underscore the fundamentally neoliberal nature of the human-rights regime.
Some now fear that Britain’s Tory government is rejecting the rule of human rights. This is not the case—unfortunately. For in submitting to the human-rights regime, Britain weakened its democratic institutions and empowered the elite.
Britain’s submission to the human-rights regime began in 1998, when Tony Blair’s government passed a Human Rights Act that incorporated the European Convention on Human Rights into UK law. The act claimed to uphold the longstanding principle of parliamentary supremacy. But this turned out to be a worthless guarantee. Parliament’s power was inexorably eroded by the rise of American-style judicial review. Senior judges effectively gained the final say over British life, displacing elected representatives.
This empowered the upper class. A 2019 study by the Sutton Trust found that 71 percent of Britain’s senior judiciary attended either Oxford or Cambridge, compared to 24 percent of Parliament. Even in the House of Lords, with its hereditary peers, only 38 percent of members attended Oxford or Cambridge.
Today, these judges can effectively rewrite laws that they deem insufficiently protective of “rights.” If that isn’t possible, they can issue a “declaration of incompatibility,” which signals to Parliament that the legislative provision contravenes international law. Lady Hale, the former president of the UK Supreme Court, has defended this by pointing out that Parliament remains supreme: It could simply ignore declarations of incompatibility if it so wished.
Technically, this is true. But as the legal scholar Jonathan Morgan has pointed out, such arguments are “highly misleading.” The threat of an appeal to the European Court of Human Rights in Strasbourg means such declarations exert considerable pressure to defer to domestic judicial rulings. In any event, Parliament can’t overturn individual decisions of the Strasbourg court. It must either put up with every judgement or withdraw from the European convention.
Boris Johnson’s Tory government proposes to replace the HRA with a “new British bill of rights.” In effect, it would strengthen protection for freedom of speech and limit the right to privacy. The new “bill of rights” would also add trial by jury to the list of protected rights, and it would require claimants to show that they have suffered a significant disadvantage, make changes to the remedies available, and increase a focus on “responsibilities.” But Britain would remain a signatory to the European Convention on Human Rights, and so the UK government would continue to be bound by the decisions of the Strasbourg court.
Notwithstanding their tepidness, the Tory government’s plans have elicited a parade of denunciations in Britain’s liberal press. Questioning the wisdom of the judiciary is up there with disliking the 2012 London Olympics opening ceremony or burning an EU flag on the list of things to excite liberal outrage.
Lost in the dispute between liberals and the right is the once-vibrant tradition of rights skepticism on the left. The fundamental question is who should decide contentious political questions—elites or the people? Neoliberals prefer to have conflicts mediated through the courts by judicial fiat, rather than by the legislature. Political questions, which can be decided by voters, become legal ones determined by judges.
Like all such sweeping charters, the European convention contains variations of the same hazy bromides: Life is good; torture is bad; people should have liberty and free speech. This vagueness essentially gives judges the power to legislate on how clashes between rights and competing interests should be resolved.
Another significant issue is that the list of rights the HRA protects can be contested. Widespread agreement might be found for the idea that torture is bad and liberty is good, but this isn’t the full picture. In his book The Conservative Human Rights Revolution, which charts the origins of the European convention, historian Marco Duranti demonstrates that the convention was a “conservative political artifact whose origins cannot be properly understood without accounting for the anti-socialist agenda” of its framers. He notes, “To the dismay of many socialists, they ensured that the right to property and the right of parents over the religious content of their children’s education would be codified in treaty law, while the rights to employment, health care, and social security would not.”
Consider the history of article 11, which protects freedom of association and assembly. Notwithstanding the fact that this article was intended to protect trade unions, the Strasbourg court ruled compulsory union membership (the closed shop) unlawful, as we saw, and allowed the dismissal of government intelligence service employees for joining a trade union. Cases challenging Britain’s restrictive anti-union laws are frequently dismissed at Strasbourg.
Yet the rights regime has been embraced by the left. What changed? Part of the story has to do with the left’s electoral failures, not least the defeat of Jeremy Corbyn’s Labour party in the 2019 election. With Labour under Keir Starmer showing itself ductile to establishment interests, electoral success for the left appears even more remote. Attempting to ameliorate the impact of right-wing Tory policies, it isn’t surprising that many have turned to judges for help.
The left’s embrace of rights will not help the powerless, however. Marx, after all, believed the rights in the French Revolution’s Declaration of the Rights of Man reflected the “right” of capitalists to be free from restriction and responsibility to others. It would be better to fight for radical reforms, such as breaking up media monopolies, restricting corporate lobbying, removing the unelected House of Lords, and increasing direct democracy and referendums. Nobody on the left should be wanting to hand greater power to the UK judiciary.
It is also worth remembering that a crucial factor behind the British left’s recent defeat was joining the centrist attempt to reverse Brexit by proposing a second referendum on EU membership. Why make the same mistake again? Think twice before pushing for power to be kept with a cadre of unaccountable elites and away from the demos.