Why the Tories hate the Human Rights Act: Burke and the roots of conservatism

Posted: October 7, 2014 in politics and ideas
Tags: , , , , , , , , , ,

You might have seen these recent headlines in the populist right-wing press:

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(Not the stuff about Ronnie Biggs or the “no-cleavage cleavage”; the human rights stuff).

The Tory Party, egged on by the UK Independence Party, plans to repeal the Human Rights Act if returned to power in 2015. And as those headlines show, sections of the press have lauded the proposal.

Among those of us who feel fairly sure that human rights are not mad, there is an appetite to understand where such seemingly wild views come from.

In this post I will explain the intellectual roots of conservative hostility to human rights. This involves heading back in time to the French Revolution, which is before some of the people at this year’s Tory Party Conference were even born.

In so doing I think I can present the Tory Party’s position (and that of UKIP) as a fairly coherent conservative position, rather than a bizarre outpouring of bile. In other words, this sort of thing does actually align with their philosophical tradition. Sort of.

At the same time, the political right’s opposition to human rights can be seen as more fundamentally incoherent in conservative terms when we recognise human rights as part of our shared communal tradition. Or so I will argue.

Just for the avoidance of doubt, I’m taking conservatism seriously here as a tradition of political thought for the sake of argument. As such I will be judging the Tory/ UKIP/ Daily Mail hostility to human rights in the context of conservatism itself, rather than in terms of other (more human rights-friendly) world views. Personally I find their arguments ludicrous, but that doesn’t mean we shouldn’t try to understand where they’re coming from.

I will begin by explaining how the French Revolution caused all of this.

The French Revolution and universal rights

The French Revolution of 1789 was an event of genuinely world-historical significance. You’ll no doubt be well aware of how it developed, so I won’t go into too much detail. However for our present purposes, the following points are of greatest significance.

a) An early achievement of the Revolution was the 1789 Declaration of the Rights of Man and Citizen. This was passed by the revolutionary National Assembly, after the Third Estate (the common people) had asserted its primacy over the clergy and the nobility in the Estates-General.

The document was heavily influenced by the ideas of the Enlightenment, and by the US Constitution (Lafayette and Jefferson had an influence on both documents). Enlightenment ideas, based on the primacy of reason over superstition and the capacity of rationally-directed activity to ameliorate social ills, shaped the revolutionaries’ demands in their early form.

b) Crucially, the Enlightenment influence resulted in the 1789 Declaration making universalist claims in the form of rights. For example, consider the first three clauses:

1. Men (i.e. all men)are born and remain free and equal in rights…

2. The aim of all political association is the preservation of the natural and imprescriptible rights of man…

3. The principle of all sovereignty resides essentially in the nation…

(Italics are mine).

As you can see, claims are made not about some people, or some political associations, or sovereignty in certain contexts: but about all people, all associations and sovereignty in every context.

Now there is a story to be told about the hypocrisy of these claims in a revolutionary society that merely replaced rule by the hereditary nobility with rule by the rich, and which found very little place for women in public administration. Nevertheless the document was understood by its authors as comprising a set of universal truths, and should be understood in this spirit.

c) By the time Robespierre’s Committee of Public Safety was conducting the Reign of Terror (1793-4), and the guillotine was being used as a quintessentially modern solution to the problem of executing people efficiently, it was clear that the Revolution wasn’t going quite as an Enlightened philosophe might have hoped (if indeed he was still alive to have a view). Robespierre was then overthrown in the Thermidorian Reaction in favour of rule by the Directory (1795-9), before Napoleon seized power in the 18 Brumaire coup (1799), initially in the guise of the Consulate and then, in 1804, as the First Empire.

So we can summarise the above (over-simplifying massively) as follows:

• the French Revolution was inspired by Enlightenment ideas about reason, learning and the possibility of progress – and enshrined its founding principles in a set of universal rights; and

• revolutionary rule became brutally bloody, and power was eventually seized by the army.

Burke’s Reflections on the Revolution in France

The significance of the final two points above to our present purpose is simple: a Whig politician from the UK Parliament named Edmund Burke predicted as early as 1790 that the first would lead to the second.

In his pamphlet, Reflections on the Revolution in France, Burke outlined an argument that informs the conservative position on liberal rights to this day. And a very interesting read it is too.

Burke merits deep reading for many reasons, not least the fact that he is almost unique among political theorists in being able to write well (Marx is his only peer in that respect).

In essence, Burke’s argument in Reflections is as follows:

1) Every society is an organic entity; that is, tantamount to a living thing with its own history and trajectory;

2) Every society is therefore on a different path;

3) Wisdom is built up in a society over centuries, and the repositories of this wisdom are the great social institutions of that society;

4) In Britain (and, prior to the revolution, also in France) the key social institutions included the church, the nobility, private property and (especially) the monarchy;

5) Those institutions were embedded so deeply into the fabric of society that no one would be able to understand fully the roles they served or the wisdom that was accumulated in them;

6) If any of those institutions was to be overthrown, as the French did in the spirit of Enlightenment, it would be a disaster: because only then would it become apparent just what a crucial role they played in securing social stability.

Burke underlines this latter point with some elegant phrases, not least the following:

All the pleasing illusions, which made power gentle, and obedience liberal, which harmonized the different shades of life, and which, by a bland assimilation, incorporated into politics the sentiments which beautify and soften private society, are to be dissolved by this new conquering empire of light and reason. All the decent drapery of life is to be rudely torn off.″

Burke is basically asserting that the pretty clothes of Marie Antoinette, or the Hello spreads of Wills ‘n’ Kate, help bind the populace in loyalty to the country’s future.

When the actions of “meddlers”, who fail to understand the role of tradition, causes those “pleasing illusions” to be dissolved (Burke argues), people lose their moorings within society and all hell breaks loose. And when that happens, power will eventually be seized by a dictatorship.

Whatever any of us think of Burke’s worldview, there is no doubt his book proved remarkably prescient. Its reputation was deservedly made when the French royal family was executed, followed swiftly by the ‘protective’ dictatorship of Robespierre’s Committee of Public Safety and then, ultimately, by the rise of Napoleon to Emperor. Almost exactly as he had warned.

Burke and the conservative view of rights

In many ways the most interesting aspect of Burke’s book relates to the first two points I raised above: that societies are organic entities, and that each is different.

What Burke was saying to his contemporary audience was that they had better not try any of that revolutionary stuff in Britain, because Britain was not France. But more broadly, he was arguing that what may be right in one context won’t necessarily be right in another. And this attacks the underpinnings of the universal rights promulgated in the Declaration of the Rights of Man and Citizen – and of contemporary human rights documents like the European Convention on Human Rights (ECHR).

Burke is arguing that you can’t have a universal right to (for example) political equality, because in some societies (such as his own) this would destabilise the monarchy and nobility, with untold consequences.

To put this another way: the delicate balance of social stability in a particular society is achieved almost invisibly through the interplay of wise and enduring social institutions. This stability would be threatened by the imposition of so-called universal rights that actually derive from a specific (and different) context and which give people the authority to alter the institutional balance.

Context, therefore, is the crucial factor in determining political matters, and context is always different. As such, you can’t decide matters in advance, so to speak, through the application of external, universal rights (such as: you will always have the right to free assembly whatever the circumstances). Instead, you have to look at the particular traditions and priorities of a given society. Or so the argument goes.

Burke and contemporary conservatism

The reader will be starting to recognise Cameron’s speech to the Tory Party conference last week in some of this. Cameron’s pledge was to repeal the Human Rights Act, replace it with a British Bill of Rights and stop taking “instruction…from lawyers in Strasbourg”.

This is, essentially, a Burkean position. If you take Cameron at face value (please, come with me on this one) he is asserting the primacy of a specifically British set of rights. This Bill of Rights would presumably be derived from familiar and enduring parts of our shared heritage, such as Magna Carta and the 1689 Bill of Rights in the distant past and the Representation of the People Acts in more recent times.

These rights would presumably be enshrined in such a way as they could not easily (or at all) be repealed, much in the same way as the US Bill of Rights.

Crucially, the British Bill of Rights would not make universal claims on other societies. There would be no suggestion that “our” rights are also “theirs” – they should get their own set of rights.

Cameron’s position, then, is that fundamental rights in the UK should derive from the particular historical trajectory of British society, and are neither exportable to nor informed by the rights of other societies.

We may note in passing that UKIP’s entire platform seems to be a version of this idea – people outside Britain should not be telling us what rights we should want, any more than they should be able to set our interest rates.

The logic of rights

There are two problems with Cameron’s position that I can identify, when considered purely in terms of conservative thinking. The first (less important) one might be seen as a Burkean objection.

The trouble with replacing the Human Rights Act with a Bill of Rights is that it still consists of a list of rights, and rights contain an unavoidably universalist orientation.

A British right may not be written in Brussels or New York, or interpreted in Strasbourg or anywhere else outside the UK, but it is still shorn of context.

In any circumstance, across the time and space of British history, it is contended that all citizens will have an equal right to do something, or not be denied something, or make a claim on something, or be immune from something. Who knows what the consequences will be for social stability when those rights are used under different historical conditions!

Just think of the Second Amendment to the US Constitution (or the second entry on the Bill of Rights): the right to bear arms. Was that such a good idea? Burke has a coherent answer to that question whether we are comfortable with his theory or not. In Burkean terms, enshrining this in the Bill of Rights served to universalise across time and space a very specific concern: that a voluntary militia might be needed to defend individual states against the new federal government. This had the consequence of leaving America stuck with a hugely problematic right in an entirely different era.

A more recent conservative thinker, Michael Oakeshott, characterises this in derogatory terms as “rationality” – his term for the attempt to change society through the application of external rules (such as rights). For example, if a society decides that equality is a goal worth pursuing, it establishes a right to a social income or a right to expropriate property – and in so doing sets off the sort of chaos that Burke prophesied in France. Or so he would argue.

The key point is that any rights regime will have unforeseen consequences in terms of how rights come to be applied.

This, according to Cameron, is actually what he dislikes about the Human Rights Act. The HRA enshrines the European Convention on Human Rights into UK law, including the undertaking to respect the European Court of Human Rights in Strasbourg as the final court of appeal on human rights disputes. So Cameron claims it’s not actually the content of the Convention that he disagrees with, it’s the application of it by judges in Strasbourg that annoys him.

But whatever ends up in his proposed British Bill of Rights will have to be interpreted and applied too, and he might not like that either. So the coherence of his position, even in conservative terms, starts to unravel.

And now we can turn to an even bigger objection to his position.

Tradition in conservative thought

Central to Burke’s foundational conservative thought, and to the more recent work of Oakeshott, is the idea of tradition as underpinning social stability. In a sense, Burke’s entire argument in Reflections… can be reduced to the need to respect tradition. And it is clear from the tone of the contemporary political right, whether Tory or UKIP, that human rights are not seen as compatible with our British traditions.

But how long does something have to be part of the political orthodoxy before it becomes our tradition?

This is the main problem with the conservative approach to tradition in politics – they never seem to update their list of traditions! Because while they might act as though the origins of institutions such as the monarchy, or the aristocracy, fade into the mists of the past, they did actually start at one point. And so new traditions can get going too.

Consider the NHS. While it does seem clear that the Tories are privatising parts of the health service in England and Wales, Cameron was plinth-smackingly angry at the very suggestion he’d do anything to harm the NHS. The NHS, you see, is part of our tradition.

But the NHS is scarcely any older than the great human rights documents that shaped the liberal advances of the post-war years. Why does the NHS get to be a tradition, but the UN Declaration of Human Rights doesn’t?

Clearly, Cameron’s entire policy rests on an acceptance of the language of rights, a language that has been shaped by the growing recognition of human rights in the 20th century. So surely it is no longer coherent for a conservative to oppose human rights – because rights form part of the heritage it is their self-proclaimed duty to help conserve.

Conclusion

Conservatism has its intellectual origins in the response of Burke to the rationalist, optimistic, Enlightened revolution in France, which rooted itself in its early stages in a declaration of rights. His predictions of chaos and military takeover of a country experiencing bewildering change proved remarkably prescient. Conservative thought has subsequently based itself on a Burkean skepticism towards universal rights and a veneration of tradition.

Whether Burke liked it or not, however, the language of rights came to dominate the political landscape across the world. The 20th century in particular saw the promulgation of various human rights documents designed to be binding on everyone, everywhere, at all times.

As such, rights in general and human rights in particular must now be seen as forming part of our tradition. And Burke himself would caution against ripping out a crucial part of any society’s heritage.

So true is this, in fact, that Cameron himself has pledged to replace the Human Rights Act (and the final opportunity of appeal to the Court in Strasbourg) with a British Bill of Rights. But whether he likes it or not, rights have a habit of developing a momentum of their own when they start to be applied and interpreted. He is simply swapping one form of rights-based universalism with another. The types of people one suspects the political right are unkeen to see claim their rights in Strasbourg may well continue to claim them in the UK court system with appeal to the Bill of Rights.

Ultimately, then, we may conclude that while there is a strain of thinking to which the British conservative right can appeal in opposing human rights, the position is no longer coherent.

In fact, as upholders of tradition, it is the duty of each and every British conservative to defend the Human Rights Act to the last garrison against the meddling Prime Minister.

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