Human Rights Law & the Erosion of Politics

By Malcolm, Noel | New Criterion, January 2016 | Go to article overview

Human Rights Law & the Erosion of Politics


Malcolm, Noel, New Criterion


Why should any of us care about politics? The obvious answer is that the politicians we elect make decisions that affect our lives and the world we live in. Increasingly, however, the range of matters that can be decided by our chosen representatives is narrowed and stunted. Those who live in the European Union find that much is decided for them by processes that are beyond the reach of democratic politics. But there is another way, affecting those European countries and many others, in which the scope of political decision-making is reduced: the constant expansion of international human rights law. As the range of topics that are subject to it grows, the area in which democratic legislatures can make their own decisions contracts. Politics is not corrupted thereby, but it is limited and, in the end, downgraded. Strangely, though, the people who promote the onward march of human rights seem not to notice the gradual erosion of what may be one of the most important rights of all in the modern world: the right to live in a properly functioning democracy.

Take, as just one example, the disputed question of whether prisoners should be allowed to vote in elections. This is clearly an issue on which fair-minded people can disagree. Among the world's liberal democracies, policy varies. In New Zealand, prisoners cannot vote; in most European countries they can; in Australia they cannot if their sentence is for more than five years; and in the United States almost all states deny felons the vote during incarceration (Maine and Vermont are the exceptions), with many states continuing the ban after release from prison. The policy of the United Kingdom has long been to deny the vote to incarcerated criminals. But in 2006 this was challenged in the European Court of Human Rights in Strasbourg, which found in an aggrieved prisoner's favor. Since then, while the British government has faced repeated calls to revise its law, the House of Commons has held firm, voting in 2011 by a large majority to maintain the ban. Prime Minister David Cameron has said that it would make him "sick in [his] stomach" to grant the vote to imprisoned murderers and rapists.

To American eyes, this stand-off between Strasbourg and London might look like a simple and predictable story: international human rights law meets politics; politics wins. But if you stand back and look at the larger contest between those two forces in recent years, a very different picture emerges, at least where Britain and Europe are concerned. International human rights law is an incoming tide, and many of the policies that the democratic legislature has supported, and may still want to support, are crumbling like sandcastles before it.

The European Convention on Human Rights (1950), to which the United Kingdom is a signatory, is one of several regional conventions drawn up in the wake of the Universal Declaration of 1948. It was created by the Council of Europe, a body which remains quite distinct from the European Union, and which is responsible for the European Court of Human Rights in Strasbourg. Unlike most of the other regional human rights conventions, this one has had a profound effect on the development of law in the countries that signed and ratified it. In almost every case, when the Strasbourg Court has found against the U.K. government, British law has been swiftly changed; the issue of prisoners' voting rights offers a very rare exception. And ever since the Convention was incorporated into British law in 1998, the United Kingdom's own Supreme Court, while unable to strike down a domestic law, has been able to make a "declaration of incompatibility" on human rights grounds, which normally has the effect of persuading Parliament to amend or repeal the incompatible law in question. This gives British judges a de facto power, though not a de jure one, over the legislature; given the United Kingdom's constitutional traditions, it is not a power that they are always happy to possess. …

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