“Progress is born of doubt and inquiry. The Church never doubts, never inquires. To doubt is heresy …” 
― Robert G. Ingersoll, “Thomas Paine” (from The Gods and Other Lectures). 

At times, progressives give the impression of regarding certain institutions as so self-evidently good that they need to be put beyond not only change, but question. Recent events following the announcement of the government’s Independent Human Rights Act Review suggest that this impression may well be correct.

To fill in the background, the Act which the Review is set up to look at supplements the European Convention on Human Rights, which the UK government ratified in 1951. The Convention itself is a treaty, enforceable solely on the international plane, and interpreted for that purpose by a supranational court, the European Court of Human Rights. The Human Rights Act, passed in 1998, changes matters by introducing the provisions of the Convention into domestic UK law and, with a few exceptions, requiring UK courts to give effect to its provisions. 

The government has for some time suspected that the operation of the Act in the last twenty-two years has led to excessive judicial intervention in matters better left up to politicians and administrators. On 7 December it announced that it had appointed a panel of seven lawyers and academics headed by a retired Court of Appeal judge, Sir Peter Gross, to carry out a review into whether there was a need to reform the Human Rights Act. A report is expected by early summer next year.

It’s hard to see the objection to an information-gathering exercise like this one

The reaction to the announcement was swift, and unwelcoming. The Twittersphere exploded with suggestions of an authoritarian plot. MP David Lammy immediately denied the need for any review, saying there was “no need for a review into the rights and freedoms that underpin our democracy and all of us enjoy”. From her vantage-point as Chair of the parliamentary Joint Committee on Human Rights, Harriet Harman tweeted that this was the fourth review in a few years and that she would be scrutinising it closely. The Law Society made it clear that as far as it was concerned the rights in the Act were “core to the UK’s identity as a democratic, fair and just nation”; Liberty decried the exercise as “concerning for democracy”; and Amnesty International joined in, warning that it could lead to a “giant leap backwards.”

Well, up to a point, Lord Copper. The matter is actually rather more nuanced. For one thing, the review itself represents no threat whatever to the status quo. This is an operation aimed at informing the government and the rest of us and presenting options, including doing nothing. Before anything is done about any conclusions it reaches, there will undoubtedly be intensive political discussion. If so, then unless you are a political Panglossian who believes that the present rules on human rights already put us in the best of all possible worlds, it’s a little hard to see the objection to an information-gathering exercise like this one.

Furthermore, the review’s terms of reference are carefully limited to seeing how well the Human Rights Act works. Outright repeal, it’s fairly clear, is not on the menu: nor is any question of the UK’s continuing adherence to the underlying Convention. Also, while naming no names, members of the group carrying out the review include both a declared human rights sceptic and at least one person who has argued that restraints on the judiciary can often be constitutionally suspect; so, the idea that this is a put-up job, or that we are guaranteed a report in favour of the government view is not very convincing. 

All this aside, however, there are some good reasons to think seriously about the way the Act operates. At present our courts in interpreting it are required to “take account” of the jurisprudence of the European Court of Human Rights. In practice, almost any settled practice of that court is accepted as binding; indeed, at times our courts have “gold-plated” the approach of Strasbourg and gone beyond what its judges have actually required.

UK courts should be more prepared on occasion to go out on a limb and say the European judges have got it wrong

There is a respectable argument that this is wrong, and that the Act should be changed to say so. The European Court of Human Rights already has a distinct liberal-progressive bias; given this leaning, and the fact that neither the words of the Convention nor their interpretations of them are changeable by any remotely democratic process, arguably the UK courts should be more prepared on occasion to go out on a limb and say the European judges have got it wrong. Even more arguably, our courts should not off their own bat extend the reach of the Convention so as to judicialize yet more matters otherwise left to the political process.

Again, there is a respectable argument for amending legislation where it seems clear to the elected government that the Convention has been taken too far by a cadre of cosmopolitan, unelected human rights judges. No-one would have imagined in 1951, for example, that when the Convention required states to observe it “within their jurisdiction”, this would be interpreted as also applying in many cases to acts done abroad, thus sweeping into a tiresome human rights net a great deal of warlike and peacekeeping operations outside the UK: yet this is what has happened. In terms of political principle there is a good deal to be said for legislation changing the Act so as to set back this particular piece of mission creep.

Yet again, the Act provides that where domestic legislation has been found by the European Court to be incompatible with the Convention, that legislation can be changed by mere ministerial order to bring it into line. To some it might seem unattractive that legislation passed by an elected government should be able to be side-lined by administrative fiat, without going through the full democratic process, on the basis of a decision by a body based outside the UK with no democratic credentials whatever. 

We may not be a churchy nation, but we are in danger of succumbing to the religion of human rights

This isn’t to say that the review will recommend changes on these lines, or indeed any changes at all: still less that these changes are necessary. It is, after all, an independent review, led by a chairman whose independence is beyond question. What is disconcerting, however, is the nature of the reaction to it. The sensible political response to the Human Rights Convention and the Act based on it, as to any other fallible human institution (especially one that, contrary to its description by the Law Society as “core to the UK’s identity as a democratic, fair and just nation” actually aims to reduce popular sovereignty by putting large swathes of social policy essentially off limits to the democratic process), is one of healthy scepticism. 

Yet the unstated belief consistently underlying the attacks on this review, even before it has started, is almost exactly the opposite. It is that any rolling back whatever of the power of judicial intervention on human rights grounds must automatically and on principle be fought.

This is the language, not of openness and making one’s mind up on the basis of argument and evidence, but of religious enthusiasm. Truth and enlightenment lie in an ever-closer approach to the pronouncements of an enlightened core of human rights judges, academics and international civil servants: disagreement comes close to heresy. We may not be a particularly churchy nation any longer, but we are in distinct danger of succumbing to a destructively progressive cult: the religion of human rights at all costs.