This site maintains an interest not only in the substance of human rights and other law, but also in the manner in which it is debated. A good example of how not to discuss human rights is found in an article by Adam Wagner in The Times of Israel / Jewish News entitled Why Theresa May and Michael Gove are on highly dangerous paths.
My son, who was heavily involved in competitive debating for his university, tells me that there is a recognised rule in debating competitions known as reductio ad Hitlerum, according to which the first side to resort to comparisons with Hitler and the rise of the Nazis, automatically loses. On that basis, Wagner loses quickly, deliberately and almost gleefully; and thereby trivialises and confuses an important conversation about the protection of fundamental rights at law in the United Kingdom.
Wagner’s basic proposition is that both Michael Gove and Theresa May are “proposing fundamentally dangerous paths” as a result of which “Jewish people should be very worried”. It could be argued that paranoia is every bit as dangerous for Jewish people, and indeed for other minorities, as potentially naïve insouciance. Particularly when it is founded on fundamental misunderstandings.
The fundamental misunderstanding running through Adam Wagner’s article relates to the origin and nature of the protection of fundamental rights in the United Kingdom. Wagner argues that the EU and the ECHR are vital to the protection of fundamental rights in this country. This overlooks the simple but important fact that fundamental rights have been recognised in and protected by the United Kingdom’s constitutional, parliamentary and judicial traditions and practices for many decades before the European Union or the ECHR came into existence. Indeed, Wagner rightly points out that the ECHR was “drafted mostly by Conservative British politician David Maxwell-Fyfe”, but he overlooks the fact that it was the depth and breadth of the common law tradition of protection of fundamental rights that enabled Maxwell-Fyfe to make that contribution, not simply his participation at the Nuremberg trials.
Many judges have pointed out, particularly since the enactment of the Human Rights Act 1998, that the UK courts have been protecting fundamental rights as an integral part of the common law tradition for centuries. To give just one example, whereas the notion of retrospection is outlawed by the ECHR in the relatively narrow context of retrospective criminal liability, as a presumption of statutory interpretation and a component of administrative law it has featured much more widely in the practices and judgments of the United Kingdom courts for many years.
Whether or not, therefore, the “EU and ECHR…have a common origin, growing from the ashes of the Second World War, the Holocaust and what was known as the European movement”, the same definitely cannot be said of the fundamental rights that those two institutions exist to protect.
From this basic misunderstanding, Wagner proceeds to assign the attacks on anomalous results of the ECHR to “the re-emergence of British nationalism” and warns that “Nationalism has never been good for Jews”. That is such a sweeping and simplistic proposition that it must necessarily be false, which it indeed is. Nationalism can be good or bad for Jews, and indeed for everybody else, depending on whether the principles on which the particular nation is founded are generally good or bad. Indeed it is perhaps ironic to suggest that British Nationalism, if that is indeed what Michael Gove and Theresa May are advocating, is “bad for the Jews”, since it was precisely that part of British nationalism that is composed of celebrating and protecting fundamental human rights that caused so many of our recent ancestors to leave a variety of European countries and embrace the rule of law society that they found in Britain.
Personally, I am agnostic as to whether fundamental rights and freedoms will be better or worse protected under a single-nation system provided outside the context of the ECHR and the EU, because I have yet to be satisfied that those responsible for compiling an alternative system have determined the parameters of their ability to legislate effectively. To allege, however, that anybody who believes that this is a more appropriate path towards the recognition and protection of human rights than the rigid application of Strasbourg jurisprudence on the Convention is necessarily committed to a journey towards Fascism, seems a singularly unhelpful contribution to what ought to be a thoughtful, careful and urgent debate.
Daniel Greenberg
Barrister specialising in legislation; Parliamentary Counsel 1991 – 2010