I once had to lead a seminar at a French grande école, where British and French students had to design an ideal charter of workers’ rights. Everyone agreed that workers’ rights were a good idea. But after hours of earnest debates and much scribbling on whiteboards, it turned out they had awarded Europe’s 280 million workers precisely half the rights they already had.
Thankfully, their grandparents took a more expansive approach. Inspired by the Universal Declaration of Human Rights, adopted by the UN in 1948, the postwar generation of European leaders spent 18 months drafting the European Convention on Human Rights (ECHR), and established the European Court in Strasbourg to enforce it.
This was the first effective supranational human rights law. While the Universal Declaration was a set of aspirations founded on the entirely new principle that all humans, despite their nationality, gender or ethnicity, had the same rights, the ECHR would be legally binding. And it was not designed by raging leftists, but by key figures in postwar conservatism.
The Labour government, with some misgivings, ensured Britain was the first to sign. But British conservatism played an important role. Winston Churchill had advocated for it, via the Council of Europe. David Maxwell Fyfe, the Nuremberg trials prosecutor and future Tory home secretary, drafted much of the convention, insisting the rights be detailed and specific, not just a set of vague principles. Future Conservative prime minister Harold Macmillan also played a supporting role, and the convention came into force in 1953.
The reason Britain pushed hard for the ECHR is clear: Europe’s business elites, judiciaries and electorates had during the previous 30 years shown a marked propensity to perpetrate acts of genocide, barbarism and repression, and to justify them both with political philosophy and academic jurisprudence.
To remedy this, British proponents of the ECHR made sure large parts of English “common law” were embodied in the text, diluting some of the Roman-originated concepts in continental civil law (typically, in continental systems, judges merely establish facts and apply remedies, whereas in English common law judges interpret and thus even make law). In the process, they also weakened the universalism of the UN declaration. There was, from the outset, a “no colonies” clause – specifying that the human rights contained in the convention would not apply to British-ruled Kenya or French-ruled Algeria. And at the start, it was states – not individuals – who were primarily allowed to take each other to court.
The convention, then, should go down in history as one of British conservatism’s finest moments: an expansive gambit to align continental Europe with the victorious Allied democracies, suitably watered down to allow British imperialism to go on murdering the Mau Mau and jailing gay men for consensual sex. All the 1998 Human Rights Act (HRA) did, under Labour, was to enshrine the ECHR into UK law.
But today both the Human Rights Act and Britain’s membership of the convention are under threat. Though adhesion to the ECHR is written into the Brexit withdrawal agreement, Boris Johnson is pledged to scrap the HRA. Dominic Raab now speaks of overhauling it, in a way designed to remove the power of judges to enforce the convention.
The reasons the Tories want to scrap the HRA are obvious. What they want to do to asylum seekers is incompatible with the convention, as well as numerous other international agreements, including the 1951 Refugee Convention, the UN Convention on the Rights of the Child and all maritime law. The proposal to “push back” migrant boats crossing the Channel is illegal under the fourth protocol of the ECHR, which forbids collective deportations. It is also in direct contravention of maritime law, which makes refusal to go to the aid of a vessel in distress a criminal offence.
The proposal to deport asylum seekers to jails in third countries – the so-called Australian-style solution to the Channel crossings – violates the Refugee Convention and the UN Convention on the Rights of the Child, as well as numerous provisions of the ECHR.
The proposal to create two tiers of asylum seekers – those deemed to have arrived illegally and those not – also breaches the convention. So does the proposal to allow the government to arbitrarily strip people of their British citizenship, which a study for the New Statesman shows could apply to two out of every five black and ethnic minority people in the UK.
If the Nationality and Borders Bill goes through as currently amended, it will run in direct contravention to the HRA, and is prepared by the Tories as the next iteration of Brexit. Britain, having quit the EU, will be forced to leave the European Convention if it scraps the HRA, or amend it as Raab intends. That, in turn, will void the Brexit withdrawal deal.
A lot of the opposition to the Nationality and Borders Bill has focused – quite rightly – on the cruelty, expense and unworkability of the proposals. Australia’s offshore detention centres, for example, which ended in 2021, were a moral and financial chasm. The US ended up taking hundreds of those permanently detained there, others took their own lives. The cost has been estimated at more than A$3m per detainee. In addition, Priti Patel’s pushback proposals could criminalise Border Force personnel, opening them to prosecution.
But we cannot allow the practicality argument to eclipse the bigger one, which the Tories are pushing hard into the so-called Red Wall areas where right-wing populism is flourishing. The fundamental argument is the same one the writers of the UN declaration and the ECHR confronted in the late 1940s: are human rights to be contingent on people’s nationality, race or sex – or are they universal?
For right-wing populists – as opposed to Conservatives in the tradition of Churchill and Macmillan – human rights are always framed as “for somebody else”. An inconvenience, imposed on us by Europe, or the UN, or tiresome treaties signed before black and brown people came to the UK in large numbers.
Human rights, in the far-right mindset, cannot be universal, since the world – implicitly but increasingly explicitly – is divided into higher and lower peoples, races or nationalities.
For decades, conservative thinking on human rights hovered around a greyzone that could be called “conditional universality” – a preference for universalism so long as it didn’t get in the way of global finance, counter-terrorism or expeditionary warfare. When they pushed for a “British bill of rights” – from Margaret Thatcher to David Cameron – Tory leaders had in mind a rougher concretisation of the ECHR, but a concretisation nonetheless.
With Brexit, and its de facto merger with Ukip’s mass base, conservatism is morphing into something more clearly nationalist when it comes to human rights.
Scott Benton, the Tory MP for Blackpool South, wants not only to scrap the HRA but to bring back the death penalty. Meanwhile, the Johnson government is looking to introduce new and stringent punishments for peaceful protest; the original form of the Overseas Operations Bill would have protected British soldiers from prosecution, even for torture and genocide.
If these were the actions of an out-of-touch neocon elite, they would still be dangerous. But they have widespread support among the Tories’ new, plebeian mass base – that conservative part of the British working class that has never cared much about justice, be it social, economic or legal.
As with Brexit, there’ll be part of the labour movement that just wants to ignore the principles and hope the practicalities will go away. But in a modern democracy, riven by culture war and assailed by dictatorships eager to prove the legitimacy of rule by crime syndicate, you have to fight for the principle: for universal human rights, enshrined in treaties, enforced by courts and understood by both politicians and the people as inalienable.