A recent post by Adam Wagner of human rights advocacy group RightsInfo.org argued that the Conservative Party should get behind the Human Rights Act (HRA). The article is an express endorsement of a piece in The Times (£) by Daniel Finkelstein, a Conservative peer and associate editor of The Times who calls for Tories to back the HRA because ‘if they don’t, then they risk a Jeremy Corbyn government unchecked by the protection of basic civil and political rights.’ The specific human rights in question are property rights, with Wagner arguing that ‘Private property rights are a central part of human rights protections.’ Wagner focuses on the Grenfell disaster, highlighting Corbyn’s suggestion that private property should be seized in order to re-house the displaced residents of the fated tower-block. A particularly lazy comparison with Venezuela’s Hugo Chavez is also made before the piece ultimately expresses approval with Finkelstein’s conception of human rights as securing individual liberty and as ‘bulwarks against state excesses’.
It is certainly true that the right to private property is protected by many human rights documents. However, the inclusion of such rights and the philosophy that underpins them have long been subject to sustained critique—namely, a liberalism which evolved from a bourgeois class as a means to protect their new found wealth from the classes below and claim power for themselves from the aristocracies above. This liberalism places great emphasis on individual freedom but often at the expense of equality, ignoring the power structures at play in society that perpetuate these inequalities; power structures that were exposed by the devastation of the Grenfell disaster. By harkening back to an over-emphasis on individual freedom to defend human rights, RightsInfo may do more harm than good to the broader human rights project in the UK.
Human Rights and Private Property
This link between bourgeois liberalism and human rights has long been highlighted by the left. Bills of rights have, for example, been opposed by many on the left precisely because of their role in protecting private property. These arguments contend that bills of rights such as the HRA stifle movements for popular change— an idea embraced by Wagner in light of the current ‘populist moment’. They re-enforce the status quo by legalising political disputes and put the rights of people in the hands of elitist judges who, by their very nature, are drawn from the wealthier classes and so will be pre-disposed towards the protection of private property.
A classic example of courts acting as a barrier to progressive change is Roberts v Hopwood  AC 578 where the House of Lords held that the decision of Poplar Borough Council to pay its lowest grade of staff the same rate, regardless of whether they were male or female, was unlawful. In the House of Lords, Lord Atkinson stated that:
The council would, in my view, fail in their duty if, in administering funds which did not belong to their members alone… allowed themselves to be guided in preference by some eccentric principles of socialistic philanthropy, or by a feminist ambition to secure the equality of the sexes in the matter of wages in the world of labour.
Roberts v Hopwood further demonstrates that the HRA is not needed to protect property rights in the UK anyway as the common law that existed before the HRA was an ample barrier to ‘eccentric principles of socialistic philanthropy’ or ‘feminist ambition’. Indeed, some of the worst decisions under the HRA can also be traced back to this deferential judicial respect towards private property and a version of liberalism closely linked to market capitalism. In YL v Birmingham City Council, for example, the majority of the House of Lords held that a private care home under contract with a local authority was not exercising ‘functions of a public nature’ meaning that the care home residents could not avail of the HRA to vindicate their rights against the care home’s operators.
Despite these political disagreements as to the utility of bills of rights, however, many initial critics of the judicial protection of human rights have subsequently voiced their support for the HRA. Conor Gearty, for example, has lauded the HRA’s role in curbing the excesses of extreme counter-terrorist powers and vindicating the rights of vulnerable individuals.
Beyond Bourgeois Liberalism
Human rights theory has moved on from this liberal bourgeois foundation to deeper, more coherent normative arguments for rights; for example, the concept of dignity. These arguments reject the classic divide between ‘civil and political’ and socio-economic rights to allow for a more harmonious and consistent vindication of both. Moreover, such arguments are resistant to the more extreme versions of liberalism such as neo-liberalism and libertarianism that take this foundation of individual freedom to the extreme, by labelling any state action or law which an individual does not consent to as ‘aggression’. Such individualism and reliance on the protection of private property have been used as a sledgehammer against the welfare state and workers’ rights in recent decades; all causes that human rights should be fighting against. For example, a search on RightsInfo for “Trade Union Act 2016”— legislation that made radical and profound changes to trade union laws, impacting negatively on workers’ right to strike— returns zero results. Human Rights therefore should be about much more than individual freedom and using human rights as an argument against rehousing Grenfell residents doesn’t reflect this idea of dignity.
By appealing to Conservatives to back human rights in order to protect private property and halt the rise of the left, these arguments risk doing more harm than good. They harken back to a bourgeois justification of rights resulting in a very narrow understanding of what rights are and how rights are vindicated. Moreover, they embrace arguments regarding the role of bills of rights as subjugators of, rather than protectors of the vulnerable. Using Grenfell as a warning of why protections for private property are needed is particularly distasteful in light of the sheer magnitude of the disaster. It also stands out of align with the other work that RightsInfo has done regarding the human rights implications of Grenfell and the inquiry into what happened.
RightsInfo has done some excellent work in highlighting the role that human rights play for everybody, explaining this in a manner that is innovative, informative and easy to understand. RightsInfo has also mounted an excellent campaign against the cuts to legal aid that have been so damaging to individuals seeking to vindicate their rights. An key message therefore that RightsInfo stresses is the importance of empowering people through human rights. This message, however, is undermined by highlighting how human rights can be used to thwart change in the name of conservative values like the protection of private property.
Image Credit: ChiralJon