We should support and not condemn Human Rights Act
It is difficult to open a newspaper these days without reading an attack on the Human Rights Act. Last week, it was about certain prisoners being allowed to vote. You might ask, if human rights law is truly a charter for criminals and terrorists, why not do as the politicians suggest and just get rid of it?
But that would be a grave mistake, not just for the country but also for the Jewish community.
Every week, many Jews pray that the Queen and her counsellors “deal kindly and justly with the House of Israel”. But what happens when that prayer fails? Since 2000, any individual or group has had the power to take the state to court for breach of their human rights. In other words, to stop it acting unkindly and unjustly.
Contrary to what Jonathan Fisher QC wrote recently on these pages, the Jewish community should be behind the human-rights system on three levels; historical, moral and practical.
The European Convention on Human Rights was drafted in the 1950s as a response to fascism. Each right arose, phoenix-like, as a rejection of a particular evil. The ECHR enshrined classic common law rights such as the right to be treated humanely and to a fair trial. It also included rights that were responses to particular fascist evils, such as the right not to have family or religious life interfered with by the state. The ECHR was a good idea then and it is a good idea now.
Abusive regimes do not spring up overnight
It is sometimes suggested that, since human rights were a response to fascism, they are only meant to prevent abuses of power on a grand scale. But abusive regimes do not appear overnight. The persecution of the Jews began with a gradual erosion of their rights as citizens, not with the death camps. Moreover, we should, as Jews and as humans, hold the state accountable for smaller abuses not simply because they are the thin end of the wedge but because they are bad in and of themselves. As is said in Deuteronomy: “Justice, justice you shall pursue.”
That is the moral argument for human rights, and it is inherently Jewish. Judaism is suffused with the concept that everyone is created equally in God’s image. We protect the rights of others as we were strangers in a strange land.
And, as Jews are well aware, what is popular is not always the same as what is right. Removing rights that empower the powerless — whether religious minorities or yes, even prisoners — may prove popular in the short term but it also makes us less moral and less just.
Some argue that a system of rights without responsibilities conflicts with Jewish morality. But it is wrong to say that human rights law has no place for responsibilities. On the contrary, it codifies the state’s responsibilities towards individuals.
Sometimes, a system of rights works not just to prevent abuses of power, but also as an agent of positive change. Imagine if the women’s rights movement had been expressed in the language of responsibilities. It simply doesn’t work.
And many of the rights contained in the Convention are “qualified”. This means they must be balanced against the general good of society, such as national security or the rights of others. That is responsibility by another name. For anyone doubting this, just read one of the careful judgments in a human-rights case.
But in protecting the rights of other communities, do we risk harming our own? Some argue that human rights is anti-religion. It seems to me that this over-simplifies the balancing exercise that judges undertake.
This brings me to the third reason we should support human rights — practical reality.
Human rights provides an elegant way to manage interaction between communities in a modern society. Jews have lived under enough oppressive regimes throughout history to appreciate that. Indeed, one of the 16 rights available under UK law is freedom of religion. How can this be bad for the Jewish community?
Of course, in a system that balances rights, some decisions may be objectionable to believers. For example, some more Orthodox Jews may feel uneasy about decisions that enhance the rights of homosexuals. But that unease would not disappear if the Human Rights Act was repealed. Those decisions are a consequence of living in a secular society. At least, in a system which is tied to human-rights law, religious rights will always be a part of the balance.
Jewish history teaches us that prayer alone is not enough to ensure that states act justly. The Human Rights Act is a weapon against injustice and deserves our support.
Adam Wagner is a barrister specialising in human rights and medical law. ukhumanrightsblog.com