In the UK, we’ve recently elected a new government, and the result was disappointing for many of us. The Conservatives have now expressed an intention to repeal the Human Rights Act (1998), on the argued grounds that it protects criminals and terrorists. To be fair to the Tories, they said they were going to before the election, so it can’t really be argued against on those grounds. I have seen a number of pieces explaining the complications of repeal, generally talking about how it intersects with other legislation and treaty obligations, so to remove the HRA would require unravelling a Gordian knot. I shan’t go into such matters, since I’m no expert in the legal niceties, except to observe what happened to the mythical Gordian knot; I’m not sure that Michael Gove won’t just forge ahead with his plan and worry about the consequences afterwards (look at Lords reform for a policy under a previous administration that was started without any idea of an endpoint).
So on the basis that, if they believe that it is the right thing to do, the Conservatives might just go ahead and repeal the Act and damn the consequences, their opponents need to make the case as to why this is the wrong thing to do. Assuming that Her Majesties Opposition do their job (which may be over-optimistic given the last 5 years, but let’s hope the new Labour leadership is a bit more effective), and given the size of the majority currently held by the Conservatives, this looks like a matter of persuading a relatively small number of MPs, either directly or via their constituents, that to do so would be a mistake. So far so good.
The problem is that while there are a considerable number of people, in both the traditional and new media, making what appear to be very reasonable cases as to why the HRA should not be repealed, I’m not convinced that those who either support or lean towards repeal will listen to them. Obviously, this is at least in part because there is a lack of direct communication. You can write as many letters to the Guardian as you like, and Telegraph readers are going to remain cheerfully oblivious. This is even more heightened by the gap between the traditional and new media. I love Twitter, but most of the country (certainly that part over the age of, say, 30) barely registers its existence, let alone considers that it might be the site of serious political discussion. Of course the reverse is also true, as readers of physical media are probably relatively unaware of how irrelevant it seems to the younger generation. But aside from the issues specific to particular media, I think the major problem is that the two sides are speaking in different languages.
The broadest issue here is that when the term Human Rights is used, different people hear completely different things. For those of us who *believe* in Human Rights, their existence and nature is self-evident. While we might debate their precise constitution, for us the fact is that a) there are certain rights that are common to all of humanity, and b) that these are assigned purely on the basis of being human. For the other side, this is not the case. At the extreme, there are plenty of people who do not recognise the existence of rights at all, only privileges. In this case, ‘rights’ are something awarded in return for certain behaviours: paying one’s taxes, adhering to the law, etc. Secondly, these rights or privileges may be specifically limited to citizens of a particular territory. This is not an unreasonable position. In fact, given the concerns over the repeal over the HRA, it is eminently logical: it appears that the rights we are talking about are created by the HRA and similar legislation. Where we, as believers in Human Rights, diverge is in insisting that these rights exist regardless of the HRA. For us, the law only recognises, and administrates for, self-evident facts.
So the challenge for those arguing that the HRA should be maintained, or at very least that those who wish to repeal it need to make a lot clearer what exactly will replace it (because nobody is arguing that it is without flaw), is in speaking in way that their opposite numbers understand.
Speaking across the line
So, having determined that we must talk in way that resonates with those we are trying to win over, we must begin by acknowledging who they are. The first, small, group is ministers and senior members of the Conservative party who find themselves directly frustrated in their plans by the existence of the act. I suspect persuasion here is a waste of everybody’s time. The vast majority of people who support, or at least ambivalent to, appeal have far less personally invested in this happening or, more pertinently, believe this to be the case.
To appeal to this large body of people, I think we must make the case in terms of self interest. To be clear, this is not to say selfishness, as they are as concerned with the good of those around them as are any of us. But we must explain how the law benefits (and repeal would injure) people like them. We’re broadly dealing with tribalism. There opposition is based on what they believe to be right for their family, friends, and the country at large.
For the above group, the apparent effects of the act can be summarised in two broad categories: it protects and privileges criminals and terrorists, or at least people suspected of being such; it has no positive effects for ‘hard-working’, tax-paying, law-abiding citizens such as themselves. That the former is, at least partially, the case is unarguable (the protecting part, not the privileging – if it gave rights to the accused that were not general to the population, it would indeed be flawed). This is part of what it is supposed to do. The idea that it does not do the latter, though, is attached to the notion that there are two distinct classes of people, which we might just call ‘criminals’ and ‘citizens’. (by the way, I’m fully aware that I’m doing the dividing thing myself by talking in terms of ‘them’ and ‘us’, but this is merely regarding temporary positions on a single argument, not a lasting classification)
So, I think the case needs to be built, or restated, given the fact that it is self-evident to many, that the division here is false. That by committing a crime, still less by being accused of one, one does not suddenly move beyond the pale. That a criminal, a protestor, an asylum seeker, is not in any way a different *sort* of person to any of the rest of us ‘law-abiding’ types. As long as you can accept, or even self-construct, a narrative where there is the sort of person who this happens to, and the sort of person you are, it’s only a small step to believing that they deserve different treatment. It’s not as naked as self-interest vs. not caring what happens to others, but the fact remains that we find it hard to empathise with people without a strong personal connection. And that can be manipulated by those who control the narrative. I think much of it is actually driven by our need to believe in natural justice. We know we live in a world where some people are treated badly, and the idea that we are somehow complicit in that is deeply troubling. So we listen to those who tell us that those who are in trouble must have done something to deserve it.
I think the case that needs to be made to save the HRA is based on asserting its benefits for all of us. It doesn’t help that if you are, say, a white middle class professional, you do generally get treated well by the authorities if you should happen to come into contact with them. You think, for the most part, that they are fair. Your day-to-day experience shows you this. And if they are fair to you, why wouldn’t they be fair to everyone else? But while an unchecked state may start by treading on the smallest of us, it will see no reason not to extend the practice.
The case needs to be made that a state and a people that does not respect and protect the least of us, the disadvantaged, the criminals, those who do not have citizenship, does not in the end respect or protect any of us, except maybe those who are rich and powerful enough to buy their own way. Only by showing that we are all the same, that Human Rights are exactly what they are called, are we going to be able to win over those who see the HRA as unnecessary or even bad.