The announcement by the Home Secretary, Theresa May, that the Conservatives would scrap the Human Rights Act (HRA) and potentially pull out of the European Convention on Human Rights (ECHR) if they win the next election is music to the ears of the Tory right.
Following the Eastleigh by-election in which the Conservatives came a humiliating third behind the Lib Dems and UKIP, May has decided to echo the reactionary Justice Minister, Chris Grayling, in his attacks on European human rights legislation. However, the Attorney General, the government’s most senior lawyer, told the House of Commons in October last year that Britain “strongly supports” the ECHR and that it must be allowed to “continue its very good work”. Aside from the apparent splits at the top of the Conservative party that this announcement illuminates, it raises the question of how Marxists deal with the question of human rights and how far the HRA and the ECHR can help us in the transformation of society along socialist lines.
The origins of human rights
The protection of human rights is a fundamental principle of liberal democracy. The UN Declaration of Human Rights was first conceived of in 1948 and with the ECHR being finalised in 1953, human rights were seen as a way of championing the individual against the state. The broad based consensus that developed in Europe at that time around the concept of human rights can be explained on a class basis.
The European working class still had the horrors of fascism fresh in its mind, with the destruction of the trade unions and the attacks on workers that it brought along with it. A powerful method of limiting oppressive state power and enshrining rights such as the freedoms of speech and association was a useful new weapon with which the working class could defend itself should fascism ever rear its head again.
Meanwhile, the ruling class in Europe were looking nervously towards the USSR, its state-planned economy and the threat that such a model posed to the interests of Western capital. For these people the Convention’s insistence that individual rights to private property are an inalienable part of being human were an effective tool to combat the spread of dangerous communist ideas.
For the ECHR to include such contradictory class interests was possible due to the dampened class struggle in the 1950s. The post-war economic boom was in full swing; the leaders of the working and ruling classes could afford to collaborate on the basis of granting concessions to the working class. The ECHR is the contradictory and vaguely worded result of this cooperation between classes.
Human rights: in whose interest?
There is no doubt that the passing of the ECHR granted important rights to the working class that we must continue to defend. To the extent that human rights agreements include workers rights, such as to trade union representation, as human rights, they are weapons in the arsenal of the working class. In 2008 a Turkish civil servants’ union, Tum Bel Sen, won a huge victory for the working class in the European Court of Human Rights when the court decided that the right to collective bargaining is part of the human right to freedom of association, protected by the ECHR. Thanks to Britain’s membership of the Council of Europe and via the HRA, this decision is binding upon British courts and must be followed by British judges and politicians.
However, Engels wrote in his book The Condition of the Working Class in England: “The working man only gets...the mockery of the Justice of the Peace who is a bourgeois himself, and of the law which is made by the bourgeoisie”. And these words still ring true today in relation to the ECHR and the HRA. The legislation does not protect the right to a living wage, the right to sufficient food, or the right to clean water. Although the freedom from inhuman or degrading treatment is protected, judges refuse to recognise that savage welfare cuts, brutal working conditions and wage-slavery fall into the category of degrading treatment. British judges have even managed to navigate the loosely worded exceptions written into the ECHR to proclaim that the kettling of peaceful protesters is a legitimate police tactic, despite the right to freedom of movement being a fundamental human right. As Marx said, "Right can never be higher than the economic structure of society and its cultural development conditioned thereby." If human rights legislation implies that workers will be the equals of capitalists, it will remain a fiction unless capitalism is overthrown.
When dealing with human rights law and modern bourgeois law in general, the cards are very much stacked against the working class. The prized liberal principle of equality before the law is defensible in the abstract, but when applied to the real world of harsh and growing inequality between classes it does nothing more than reinforce the inequality that capitalism creates. As Engels said, it does “nothing else but give inequality the name of equality”.
Tory attacks on human rights
But if the ECHR and the HRA are so heavily biased in favour of the ruling class, why are May, Grayling and the like so keen to get rid of them? Biased though it is, human rights law is not blindly tied to the economic interests of the ruling class. It develops in its own way and, to a certain extent, according to its own internal trends and currents. In particular, they reflect the class balance of forces, not the exclusive power of the ruling class. Thus we have seen a gradual trend towards greater legal protection of the human right to privacy, something which has angered the powerful and wealthy media bosses (not that the law has been a barrier for the newspapers in their quest for profit as the phone hacking scandal revealed). And we have seen a move towards greater protection of trade union rights, culminating in the Turkish case already mentioned, despite the protestations of the European ruling class. These legal developments are dangerous for the ruling class in Britain who cannot allow these currents to drag human rights away from protecting private property and profit by giving too many rights to ordinary people.
Furthermore, as this crisis of capitalism shows no sign of abating, and in fact all the indicators are pointing to another world slump very soon, the ruling class are beginning to realise that the concessions that could be afforded in 1953 such as freedom of association and freedom of assembly are no longer viable. Human rights bolster, albeit in a small way, the power of trade unions and the legitimacy of mass demonstrations against the government. It is only a matter of time before the standard of living for many people in Britain is pushed so low by the Coalition’s austerity measures that judges and the public can no longer pretend that it does not breach the human right to freedom from inhuman or degrading treatment. One of the legal arguments used to challenge the government’s ‘workfare’ scheme was that it amounted to slave labour. Human rights challenges to the austerity programme will become more frequent and this is something the ruling class cannot allow. Similarly, the working class response to the crisis in Greece has led to the rushing through of draconian anti-strike laws.
Theresa May has dressed up her attack on the HRA and the ECHR as a defence of the ‘national interest’. She is cynically using the case of Abu Hamza, the Islamic fundamentalist whom the European Court will not deport back to Jordan because it is likely that he would be convicted there on the basis of evidence obtained by torture, as a way to undermine all human rights. We should not be fooled by this right-wing nationalism. We should recognise that this attack on human rights comes at the same time as the Tories are pandering to UKIP voters, pressure is mounting on George Osborne to accelerate the austerity in the face of Britain’s downgraded credit rating, and Liam Fox, the former cabinet minister, has called for much harsher cuts to the NHS and schools’ budgets.
Defend human rights! Fight for socialism!
The labour movement must put up a militant fight against the reactionary attempt to scrap human rights legislation, whilst not being blinded by such legislation’s bourgeois limitations. It is also possible that such legislation can be cynically used against the labour movement, by, for example, claiming that picket lines infringe upon the human right to work. Only the methods of class struggle - strikes, demonstrations, occupations - can ultimately be relied upon to defend workers.
The Coalition government is currently carrying out cuts in the interest of a tiny minority of bankers who run the international money markets, making the overwhelming majority of people pay for a crisis they did not cause. The working class has to lead the fight back against such oppressive behaviour and human rights can be a valuable weapon with which to do so. Without the HRA and the ECHR the working class will be weakened.
However we must recognise that capitalism will not always be able to afford human rights, in the same way that the ruling class found that they could not afford democratically elected governments in Greece and Italy at the onset of the crisis. To protect the interests of capital it was necessary to install ‘technocratic’ governments in these countries. If we are serious about protecting human rights then we must argue for an alternative to capitalism.
Similarly, even if they could be afforded, bourgeois human rights are not the answer to all of our problems. The working class cannot put their faith in laws written, passed and implemented by the ruling class to defend their interests. It is not capitalist laws but the capitalist economy that is the root cause of the crisis currently engulfing the world. If we truly want an alternative to austerity then we must put our faith in no-one but ourselves. Armed with a revolutionary programme of socialist ideas we can organise through the trade unions and the Labour party and build a new society free from crisis and exploitation, where human rights are not protected from the top down but are defined and defended by the organisations of the mass of people, working in harmony for the benefit of all.