Why human rights law still matters: A response to Peter Hitchens

By Jing Min Tan

After the International Human Rights Day, it seems an appropriate time to pen a response to a piece titled “Human Rights Do Not Exist!” by the Conservative English journalist Peter Hitchens, published in The YLJ.

Hitchens makes the argument that the concept of human rights in modern Western societies is artificial, and abused by courts to “intervene in an Unchristian way in the politics of formerly Christian societies”. He prefers the “hard protections” conferred by age-old human rights documents like the English Bill of Rights 1689, and disparages the employment of human rights arguments to “provide a nonsensical justification for … abort[ing] millions of babies”; he also disparages the development of human rights jurisprudence as simply following the current liberal zeitgeist.

Hitchens joins a long line of politicians who have been continuously engaged in attacking the human rights regime in the UK – not always cogently. He longs for some idealised Protestant society, where Christian values – particularly the sanctity of life in the context of abortion – are regarded as non-negotiable. While most of his article focuses on the overextension of reproductive freedom to permit abortion in all cases, Hitchens never actually presents a countervailing argument to show why the right to abortion is unjustified. The closest he gets is when he cites the right to life, codified in Article 1 of the European Convention of Human Rights as well as the United States Declaration of Independence. It is submitted that Hitchens’ argument requires more logical rigour than what he has offered us.

The reality is that in all questions of law, courts are always trying to balance rights of various stakeholders – an issue Hitchens says that Human Rights is unable to resolve by itself. However, in our domestic framework, ‘Human Rights’ is not merely a conceptbut an effective legal mechanism under the Human Rights Act 1998, with constitutional safeguards to prevent an abuse of power by the judiciary. The Act, operating within essential limiting tenets of the British constitution that any first-year student of English Law would be well familiar with such as separation of powers and legislative supremacy, ensure that legal protection of human rights are not premised on judicial decisions made based on some vague impression of what the “ethical fashions” of the hour are.

As for Strasbourg jurisprudence, Hitchens raises the case of A, B and C v Ireland(2010) to show how “the courts follow” the assumption that the law must follow liberalism of the times. On closer scrutiny, it is evident that Hitchens is engaged in what Professor Mark Elliot calls “legally illiterate criticism”, since the court did not grant, as Hitchens seems to think, a right to unrestricted abortion. What the case actually decided was that Ireland was in breach of its positive obligations under Article 8 (right to respect for private life) by not providing an effective procedure by which the applicant could verify if she qualified for a lawful abortion. This is not a strained interpretation of the Article 8 right at all – it is only reasonable for private individuals to know what the applicable law is to his/her life, so that he/she can properly plan it. Hitchens also seems to have ignored the cases in which Strasbourg has refused to accept human rights arguments that applicants have made. In the case of A, B and C itself, the Court rejected the argument under Art 8 that was made by the first and second applicants who had abortions for personal reasons since the option to travel abroad for the abortion was still available to them. Already there is a threshold within the existing legal framework that must be met for courts to protect a right that an individual is claiming. That the foetus’ Art 1 right to life trumps all cannot simply be assumed, especially since individuals are also entitled to protection of their Art 3 right on the prohibition of ill-treatment, particularly in the case of victims of rape, incest and fatal foetal abnormality.

Hitchens ends his article with the forecast that the “astonishing precedents for broad, imaginative interpretation” of human rights documents will be to the detriment of liberals, as global political sentiments shift towards populism, xenophobia and conservatism. Again, this argument is something a student of UK Constitutional Law would be able to respond to: legal protections for human rights have developed within the Common Law since the enactment of the Human Rights Act 1998 (which brought the ECHR into force) such that it would be difficult for a draconian government to entirely deprive its citizens of such rights, even if it withdraws the UK from the European Convention of Human Rights. While not nearly as advanced and clearly outlined as Convention rights, there is clear precedent to protect fundamental common law rights, which cannot easily be ignored or deviated from.

Hitchens seems to think that “the concept of Human Rights” is a hazy notion as indefinable as the air. Nothing could be further from the reality of Human Rights law. In a rapidly changing constitutional landscape and contemporary challenges to human rights such as the ever-increasing ambit of executive government, modern-day slavery and human trafficking, immigration and the response to terrorism, human rights protections are more important than ever. Courts must constantly engage in the enterprise of translating age-old rights recognised in documents like the Magna Carta to our increasingly complex, globalised context so that the protections afforded to individuals.