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Human Rights as Human Values

SHAMI CHAKRABARTI

The Tanner Lectures on H uman Values

Delivered at

University of Oxford May 15, 2014 shami chakrabarti has been director of Liberty (the National Council for Civil Liberties, or NCCL) since September 2003. Shami fi rst joined Liberty as in- house counsel on September 10, 2001. She became heavily involved in its engagement with the War on Terror and with the defense and promotion of human rights values in Parliament, the courts, and wider society. A barrister by background, she was called to the bar in 1994 and worked as a lawyer in the Home Offi ce from 1996 until 2001 for governments of both persuasions.

Since becoming Liberty’s director, she has written, spoken, and broadcast widely on the importance of the post– World War II human rights framework as an essential component of demo cratic society.

She was born in London and studied law at the London School of Economics. She is chancellor of Oxford Brookes University and a visiting fellow of Nuffi eld College, Oxford, in addition to being a master of the Bench of Middle Temple.

In 2011 Shami was invited to be one of six in de pen dent assessors advising Lord Justice Leveson in his public inquiry into the culture, practice, and ethics of the UK press. She was also chosen as one of eight Olympic Flag carriers at the London 2012 Olympics opening ceremony. In February 2014, she was appointed as honorary professor of law at the University of Manchester.

Shami’s fi rst book, On Liberty, was published in 2014. She lives in London with her son.

Where aft er all do universal human rights begin? In small places, close to home—so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm or offi ce where he works. Such are the places where e very man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.

• Eleanor Roo se velt, “In Our Hands,” 1958 speech delivered on the tenth anniversary

of the Universal Declaration of Human Rights

It is always a daunting privilege for a scruff y activist to come to the smart acad emy and attempt to give a lecture, previously given by so many learned thinkers. In fact, even the word lecture seems counterintuitive to a recovering lawyer and apprentice campaigner like me, with a preference for argument, persuasion, and even call to arms over anything that might seem too remote, theoretical, or preachy to perform its purpose.

Yet this lecture series concerns “ human values,” a subject irresistible to someone who has spent her adult life attempting to argue as Mrs. Roose velt (the grand mother of universal human rights) did, so much more eff ectively, that to mean anything, fundamental rights and freedoms have to fl ourish not just in the courtroom but in the living and bedrooms, the classroom, newsroom, boardroom, and cabinet room, and on the street. Th reaten them in any one of t hese places (close to or far from home), and you threaten them everywhere. Today, in Liberty’s eightieth year, its director seeks to argue not just that this is the only way to make the law eff ective, out of re spect and protection for the ultimate in universal human values; that is what our human rights represent.

Let me fi rst set my mission and voice in context. Liberty (the National Council for Civil Liberties) was formed in 1934. You might think that a year drastically diff er ent from the present. True enough, DNA had yet to be discovered, let alone stored and profi led, and we had yet to enjoy the fi rst public tele vi sion broadcast, let alone closed- cir cuit or real ity TV. Th e world had yet to be shrunk by easy airline travel, let alone the Internet. Yet it was a time of great economic uncertainty and, for many, hardship.

Th e Far Right was on the rise all over Eur ope, and certain newspapers ran regular headlines expressing horror at refugees coming to Britain from Eastern Eu rope. Th e par tic u lar spur to Liberty’s found ers was the scenes of hunger marchers from the North of the country meeting a particularly brutal police response on arrival in London’s Hyde Park. Indeed, this response had been engineered by the placement of undercover offi cers used as agents provocateurs amid other wise peaceful demonstrators. Anyone who has read reports of similar police abuses in recent years might be forgiven for thinking that some things change and too much remains the same.

A small group of concerned writers, lawyers, activists, and academics met in the crypt of St. Martin- in- the- Fields Church in Trafalgar Square and wrote a letter to what was then the Manchester Guardian newspaper.1 Th ey had been shocked at such a crushing of peaceful dissent and vowed to defend the entire spirit of liberty. Th eir number included Clement Atlee, Vera Britain, Edith Summerskill, H. G. Wells, and Harold Laski as well as the key instigators, Sylvia Scaff ardi and her partner, my original pre de ces sor, Ronald Kidd, and the list goes on. Th e membership organization of which I am caretaker today is the one that they founded out of that same movement to defend a right to protest that didn’t exist as such in En glish law. (For all its celebrated signifi cance as a document from 1215, you’ll fi nd no mention of freedom of expression or association and many other now- cherished rights in the Magna Carta.) However, an even more signifi cant moment in the history of our fundamental rights and freedoms had yet to come.

It is very much in post– World War II moments that freedom struggles ancient, more contemporary, and anticolonial come together in a notion of human rights as truly universal values, recognizing and protecting every thing that it is to be human. It is, of course, the 1948 Universal Declaration of Human Rights that represents the aspirational values of demo crats to the left and right of politics and so many people of all the great world faiths and none. Even its preamble is instructive for present purposes:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

It goes on, of course, but notice the positioning of the legal enforcement of h uman rights. While it comes in the third stanza as an essential alternative to confl ict and rebellion, it is the values themselves that provide the “foundation of freedom, justice and peace in the world” that, when disregarded, result in the “barbarous acts that have outraged the conscience of mankind.”

Further, the declaration is of course a statement of values in being an inspirational rather than a legal document, given force in international law by a number of regional instruments, including our own Eu ro pean Convention on Human Rights (ECHR), the draft ing and implementing of which was such an impor tant part of Winston Churchill’s postwar legacy. It is this vital instrument (and its incorporation into domestic UK law by way of the Human Rights Act of 1998) that has become so denigrated in parts of our polity and media in recent years. In fact, current Conservative Party policy appears to be to repeal the Human Rights Act, perhaps in favor of a “UK Bill of Rights with Common Sense” (about which no detail has ever been provided), and there are even threats to withdraw or seriously reserve from the Eu ro pean Convention itself.2

But before addressing the vari ous criticisms that skeptics make of human rights values in general and the Eur o pean Convention and Human Rights Act in par tic ul ar, it may be worth unpacking their contents just a little. Th e enumerated rights now enshrined in law can be summed up, in my view, with three l ittle words—d ignity, equality, and fairness— and while all human rights might be described as some form of recognition of or provision for human dignity, as the Roo se velt quotation suggests, the most impor tant of these words is actually equality. Why?

Even the greatest h uman rights skeptic has little beef with his own rights and freedoms. It’s other people’s that present the prob lem. You might say that “my speech is f ree but yours a l ittle more expensive.” Furthermore, very many human rights necessarily require qualifi cation or balance in application (not least to protect the rights and freedoms of others). So the princi ple of equality works as an essential safeguard, preventing us from forsaking for others protections that we would cherish for ourselves and those closest to us. It asks us to consider (perhaps even love is not too strong a word) other people’s children and not just our own. In legalspeak, this is called “nondiscrimination”; in human speech, we call it “empathy.” It is the opposite of hy poc risy and selfi shness and explodes the myth of human rights as some kind of greedy sense of personal entitlement rather than social solidarity and glue. It is also the way in which the ballot box and courtroom work together to prevent the disenfranchised and other vulnerable groups from being left out or b ehind or sacrifi ced to some notion of a “greater good.”

From these high- level ideals of dignity, equality, and fairness (especially in the procedural sense of fair hearings and so forth), all the vari ous articulated and enumerated rights and freedoms fl ow. Th e latter articles of the Universal Declaration of course contain what we call social, economic, and cultural rights, including the right to work,3 rest,4 housing,5 health care,6 and cultural participation.7 Some younger democracies (most notably post- apartheid South Africa) have experimented with enshrining these rights in constitutional documents with legal enforceability.8 In the United Kingdom there is, of course, no single overarching constitutional document, and social and economic rights are essentially delivered by the welfare state and civil and po liti cal rights ultimately by the Eur op ean Convention, now incorporated into the Human Rights Act. Th is is not to say that there has not been a complex system of detailed legal regulation around, for example, social security entitlement; rather, the courts have not, for the most part, been delegated the role of mea suri ng parliamentary and executive per for mance against the ultimate standard of a human right to adequate provision. You might say that social, economic, and cultural rights have largely been delivered to the people of Britain by democ ratic politics and civil society, while the ultimate backstop protection for civil and po liti cal rights has been the law.

Th ere is an obvious logic to this framework, given the par tic u lar design and competence of polyphonic politics when it comes to the allocation of resources and the mostly binary nature of court- based debate. However, the obvious bridges between the way we protect socioeconomic and civil and po liti cal rights are discrimination law and legal- aid provision. Th e former gives hard- edged legal human rights protection to vulnerable people in the economy who may be disenfranchised or marginalized by demo cratic politics, and the latter makes civil and po liti cal rights real and eff ective rather than theoretical and illusory. Ultimately, it is the courts that are the most eff ective fi nal guardian of the rights in the ECHR in the face of abuses of power. Unsurprisingly, therefore, those with power to abuse sometimes resent them, but given that judges do not ultimately command armies, such resentment, when it festers and develops into contempt, threatens the rule of law itself. It is ultimately only a rule of recognition, aft er all, grounded, like the human rights it protects, in re spect rather than coercion.

We have discussed the vari ous places where human rights must live, but where do they come from? One long- standing criticism is, of course, that they are a fi ction, Bentham’s “nonsense on stilts.”9 Why do we, how can we, talk about the violation of rights that simply do not exist in societies where the po liti cal community, however large or small, has chosen not to bestow them? I think that there are essentially two answers to this question.

Th e fi rst fi nds favor oft en (though not exclusively) with people of religious faith. It is rooted in the notion that human beings are inherently special, either because they are created in the image of God or because they have some special dominion over the earth, or, to be less spiritual, simply because of their advanced capacity for ingenuity, creativity, empathy, altruism, suff ering, and so on. In any event, the argument is that each and e very h uman life is precious and should be protected in its inherent beauty and dignity. Th e vari ous fundamental rights and freedoms are a refl ection of that truth and provide protection for every thing that it means to be a human.

However, this foundation is far from practical and instrumental enough for every taste, particularly in the face of the very diff er ent and all too unequal lives that people all over the world experience in practice. So my second argument is one of democ ratic necessity and regulation and goes to the heart of how democracy is built and sustained. Just as we have seen free markets eat themselves without suffi cient regulation and enforcement, democracy too requires a basic code by which to live and stay alive. Even the most popu lar majority government might quickly descend into something quite diff er ent without hard- edged rules in favor of further elections, free conscience and speech, and many other civil and politi cal rights protected by the rule of law. It has happened all over the world and in our lifetimes.

Th is brings me to the fi rst common criticism of human rights values, thinking, and instruments: that they somehow protect individual but not collective interests. Th e fi rst response is that collectives are made up of individual human beings, and the second is that they recognize human beings as the social creatures that they are. So yes, rights to life, conscience, and fair t rials and against torture, slavery, and arbitrary detention are very much focused on protecting individuals from oppression, but rights to private and family life, expression, and association and against discrimination are a real manifestation of the way that we come together in families and in faith, po litic al, and other communities, not least to advance our shared interests. Further, the concept of what is “necessary in a democ ratic society” is introduced repeatedly in the ECHR as a legitimate limit on the qualifi ed rights, demonstrating the document as the framework of social (not selfi sh) values that it is.10

When p eople argue that we must somehow choose between social and economic advancement and our civil liberties, it is perhaps worth taking Eleanor Roo se velt’s example and going back to our homes. When a guest arrives for the weekend, do we ask them to choose between joining in with the eating or speaking at dinner? Do we off er a bedroom for the night on that condition that the guest be watched at all times by closedcir cuit monitors? Clearly not. Th ose who say that t here is a choice between liberty and equality should put that ridicu lous dilemma to a slave.

Th e second criticism, and one that I hear frequently posed as a question, is why we speak of human rights and not responsibilities. Th is is a gripe of considerable antiquity and one that Th omas Paine once described (during his observations of debates over the French Declaration) as demonstrating a mind that “had refl ected . . . but not enough.”11 His response was that a declaration of rights is by necessary reciprocity one of obligations as well. Of course, under the ECHR and Human Rights Act, the primary responsibility for protecting people’s rights and freedoms (including positively and actively rather than just by way of restraint from interference) lies with government and other public authorities.

However, as this is a framework of values as well as a legal one, there is no doubt that, for example, a conviction against inhuman and degrading treatment and for re spect for privacy must have an eff ect on my be hav ior as an ethical person. Furthermore, the state’s positive obligation to deliver these protections will oft en extend to a duty to create local civil and criminal law governing the be hav ior of those within its jurisdiction toward each other (for example, crimes against the person, data protection, and so forth). Further, my qualifi ed rights may well be limited where my bad be hav ior renders it necessary and proportionate to protecting the rights and freedoms of others. Proportionate surveillance of criminal suspects is, for example, permitted, as is imprisonment aft er a fair criminal trial that respected the presumption of innocence in par tic u lar. But a contract it is not. Th ere is no sense in which every right has an equal and opposite responsibility, breach of which can lead to a complete loss of rights and freedoms.

Th ere has to be some modicum of re spect even for those who have hurt others and perhaps lost re spect for themselves. So convicted criminals may lose their liberty and face collateral limitations on their privacy and association, but such limitations must be justifi ed and proportionate (it is hard, for instance, to see how depriving them of books or indeed the vote meets this test). Further, the absolute rights against torture, slavery, and the death penalty remain even for them.

Finally, however, given the rain forests of civil, criminal, and regulatory obligations governing (it sometimes seems) every minute aspect of our daily lives, it hardly seems excessive that there should be a small bundle of fi ft een or so obligations owed by those who govern toward those whom they are supposed to serve.

Another common beef is that in the hands of “unelected judges,” human rights become somehow antidemo cratic and undermine the overarching princip le of the British constitutional- parliamentary sovereignty. Th e fi rst response lies in the foundational argument that human rights and the rule of law, far from being antidemo cratic, provide a vital framework for the survival of democracy, preventing it from descending into dictatorship or mob rule. However, there is a further response in the exquisite constitutional compromise contained in the architecture of the Human Rights Act itself. Th e act operates as follows. First, “as far as it pos si ble to do so,” all other legislation must be read compatibly with the human rights contained therein.12 Th is marks a departure from the previous tradition of literal interpretation of legislation. Second, where “public authorities,” including ministers, have discretionary power, it must be exercised in conformity with human rights.13 Th e fact that courts are also regarded as “public authorities” for the purposes of the act means that the common law must be revisited and developed in a human rights– compliant manner.14

However, where it is simply not pos si ble to read an act of Parliament compatibly with the Eu ro pean Convention rights (the will of Parliament being too clearly of the opposite intention—as in the case of the infamous post-9/11 Belmarsh internment regime),15 the higher courts’ ultimate sanction is an ingenious device called a “declaration of incompatibility,” which informs Parliament, and indeed the public, of the way in which the statute off ends.16 Th is declaration has no eff ect whatsoever on the continuing legality of the anti– human rights provision but constitutes the ultimate in judicial soft power. It works by persuasion only as a shaming sanction, for Parliament (too oft en dominated by the executive, of course) to respond to if, and as, it sees fi t. So values trump hard- edged legal sanction even in the design of Britain’s much- maligned modern bill of rights.

Some would say that this contrast with bills of rights the world over (which arm constitutional courts with powers to strike down even primary legislation) makes the Human Rights Act something of a toothless tiger. I disagree. Th e compromise goes some way to protecting the judiciary from politicization and conversely may even embolden it in the face of the worst human rights abuses (such as internment and torture during the War on Terror). Further, in the absence of an entrenched written constitution, it does preserve the overarching theory of our system. So when se nior politicians, including, I am sad to say, the prime minister, express feelings of actual nausea (yes, actual nausea) at the human rights decisions17 of the higher courts, my advice is that they should either develop stronger stomachs or run to the bathroom and not the chamber.

Another recurring criticism is that human rights values (perhaps because they are so universal) somehow undermine national sovereignty. At the heart of this reproach is a toxic xenophobia in our current politics that works against a convention and Strasbourg Human Rights Court that have the word Eu ro pe an in their descriptions. Once more, however, the argument fails to bear scrutiny. If all internationalism ( whether of values or cooperation) is inherently undermining of national sovereignty, then the criticism stands, but the manner in which universal human rights values are delivered by the framework of the Eu ro pean Convention and Human Rights Act places primary responsibility for their application upon national governments and domestic courts. So the ECHR is a treaty to which the UK government is signatory (and indeed was instrumental in 1950), and even judgments of its custodian court in Strasbourg are for or against the government, which retains responsibility (again by way of international treaty law rather than anything more directly enforceable domestically) for their implementation.

Th e Human Right Act that was brought into force by the Blair government in 2000 goes even further to protect and enhance national sovereignty and domestic owner ship over the application of universal human rights values. First, it allows interpretation, application, and adjudication of the vari ous rights and freedoms in the convention to take place in every magistrate’s court and employment tribunal (as well as higher courts) in the land, and not just in an international court. But for the demise of legal aid, it should allow wider and swift er access to justice than could ever be off ered by a court responsible for vindicating a multitude of abuses all over the Council of Eu rope (including in the somewhat troubled Baltic states of the former Eastern bloc). Crucially, the injunction for UK courts and tribunals u nder the Human Rights Act is to “take account of” rather than to be bound by the judgments of the Strasbourg court (and indeed human rights jurisprudence from around the world).18 So domestic higher courts in par tic u lar are able to depart from previous Strasbourg interpretations of the convention. Naturally, this would leave an applicant free to take her alleged violation onward to the Eu ro pean Court of Human Rights. However, if the domestic jurisprudence was compelling enough, it might well persuade the Strasbourg court itself to change tack. Th us, just as the Human Rights Act creates a dialogue between the domestic judiciary and legislature, it creates another, between domestic and international courts, about how best to interpret and apply human rights principles. Of course, the enumerated rights in the convention are reminiscent of those to be found in postwar bills of rights the world over. Churchill, Maxwell- Fife (his Lord Chancellor), and their lawyers were thus instrumental in the draft ing of a document that can be said to link Britain to both Eu rope and the Commonwealth by way of values that are truly universal.

Which brings me to the basest and most common criticism, namely, that human rights values are simply not British enough, perhaps for being too shared or universal. To this notion I can only reply that habeas corpus (which fi nds its modern incarnation in the right against arbitrary detention) is no less precious when translated from its original Latin into En glish and every other language of the free world. Th e under lying criticism, however, is perhaps not with the nationality of the rights, but with that of the people who are to enjoy their protection. However, before dealing with the choice between human rights and those restricted to, for example, “freeborn En glishmen,” it might be worth remembering the nature of some of the freedoms in question.

Article 2 of the convention protects the right to life. Of course, being ethical rather than medical or spiritual, it cannot grant life everlasting, but it does place a positive duty on states to protect people in their jurisdiction and to investigate untimely deaths. Liberty lawyers have used this provision to great eff ect in securing investigations and inquests on behalf of the grieving families of victims of crime and state neglect.

Article 3 articulates the right against inhuman and degrading treatment and torture and is one of the few absolutes in a framework that other wise must allow fl exibility and negotiation as well as bright lines. It was used by the Strasbourg court against the common- law defense of “reasonable chastisement” in En glish common law when it was employed to protect parents from perpetrating grievous bodily harm against their children.19 It was used by w omen rape victims to force a change in the criminal procedure that previously allowed defendants to cross- examine victims in person for days on end (including as to their sexual history) in a manner that created the sensation of a second rape.20 And yes, it has been used to impugn the practice of “extraordinary rendition” of terror suspects, a euphemism for kidnap and torture in freedom’s name, at the height of the War on Terror (another Orwellian euphemism if ever there was one).21

Article 4 contains the right against slavery and servitude. Although the slave trade was outlawed more than two hundred years ago, there was until 2009 no criminal off ense under En glish law for holding someone as a slave. The argument went that threats and vio lence and locked doors were all covered by off enses against the person and false imprisonment. Yet sometimes the means of enslavement are more subtle. What of the mentally vulnerable or traffi cked person who lives as a slave without knowing better or for fear of deportation or recriminations against family back home or in circumstances where the threats or repeated common assaults are too old or other wise impossible to prove? It was only with the aid of Article 4 that my Liberty colleagues and cross- bench peer Baroness Lola Young were able to persuade the Brown government in its fi nal days to accept an amendment to its own Coroners and Justice Act of 2009, making it a criminal off ense to hold someone in slavery or servitude or requiring them to perform forced or compulsory labor.22

Article 5 is the right to liberty and against arbitrary detention, placing vital limits on both the purposes and procedures for lawful incarceration. It provided the philosophical inspiration for Liberty’s parliamentary campaigns against both ninety- and forty- two- day precharge detention for terror suspects and is also the reason the current inadequate legal regime by which so many el derly and vulnerable people are eff ectively detained by their caregivers without in de pen dent or legal scrutiny will not sustain. Some rail against human rights for suspects and prisoners, but there are unlikely suspects and prisoners everywhere. Th is is the value that prevents the knock on the door and the disappearance in the night that is the hallmark of despotic regimes the world over and throughout history.

Article 6 is the right to a fair trial and, crucially, in the case of criminal t rials, to be presumed innocent u ntil proven guilty. It has been much denigrated as a box of courtroom lawyers’ tricks by so many politicians and media moguls until they have found themselves in the dock in recent years. In fact, I would argue that a fair hearing and the presumption of innocence in par ticu lar can be seen as vital societal values that can shape our way of living way beyond the courtroom. Indeed, so many authoritarian meas ures connected with blanket police powers and surveillance and data mining in par tic u lar might be seen as an attack on the notion that we are essentially innocent until there is some proof or at least reasonable suspicion to the contrary.

Which brings us to the right to re spect for private and family life and our homes and correspondence as enshrined in Article 8. Th is has in recent times provided the fi rst positive constitutional privacy protection in our law against the burgeoning technological opportunities for surveillance, off ered by the Internet in part icu lar, and the po liti cal paradigm that the innocent have “nothing to fear” from being constantly monitored in both their public and their intimate lives. It imposes the requirements of proper justifi cation, lawful authority, and proportionality on the watchers and in my view impugns the kind of nonstatutory secret surveillance of entire populations revealed by Edward Snowden’s whistleblowing on the National Security Agency in the United States and Britain’s own intelligence activities. Th e oft en arrogant secret state seems instinctively to demand no scrutiny for itself and less and less privacy for us.

It is easy perhaps to trivialize personal privacy next to, for example, torture and imprisonment. But this is to misunderstand a vital freedom capable of changing the whole fl avor of a society by its prevalence or indeed by its absence. It is also completely intertwined with so many of our other civil and po litic al rights. How can you have free elections without secret ballots or fair trials without confi dential counsel? How can you have freedom of conscience or association without some notion of the private sphere? And even though freedom of expression is sometimes in tension with this right, a journalist knows the importance of protecting confi dential sources, and very many impor tant commentators from the early days of the printing press to those of the Internet have found greater courage to speak under the cloak of anonymity.

Article 9 protects freedom of thought, conscience, and religion. It is the right to a faith of your choice, the right to no faith, and, perhaps even more impor tant, the right to heresy within any par tic u lar community. When combined with and balanced against equality rights in Article 14 and elsewhere, it also helps us negotiate some of the diffi cult fault lines around religious conviction and equality in modern society. It demonstrates that human rights protect even the human rights skeptics who one might hope would become just that little bit more understanding as a result. So the British Airways fi rst- class lounge attendant should have been allowed to wear her cross absent any functional necessity to the contrary.23 However, local authorities should not be forced to accommodate homophobic staff motivated by their religious convictions to the point of seeking to discriminate between which members of the public they will and will not serve in the course of their employment.24

Article 10 provides Britain’s fi rst express positive right to free speech, though it is more honest than some of its international counter parts in acknowledging on its face that even this most pertinent demo cratic freedom is not unlimited. As with Article 8 (and indeed freedom of association provided in Article 11), it imposes substantial intellectual and legal discipline on those who seek to limit the right, and as is too oft en forgotten there is no countervailing right not to be off ended. Th at said, a right is not a duty, and if human rights are a framework of values as well as law, self- censorship for fear of prosecution or persecution is a terrible thing. Self- censorship in the avoidance of causing fear or unnecessary anxiety or off ense to one’s neighbors might simply be regarded as the kindness and politeness that are ours alone to bestow until overly intrusive legislators infantilize us by rendering irritation and off ense “antisocial” or otherwise unlawful be hav ior.

Last but by no means least, as indicated at the outset, the nondiscrimination provision in Article 14 provides the keys to the human rights kingdom. It is not a freestanding right to equality but provides protection against discrimination in the application of all the other convention freedoms. It has proved a vital value with which the courts have, for example, impugned the post-9/11 internment of foreign national terror suspects in circumstances where their British counter parts continued to live their lives at liberty.25 It is the provision that ensures that these are human rights and not merely citizens’ privileges. In an uncertain world of nationalism and xenophobia, why should internationalism be the preserve of multinational corporations, trading blocs, and or ga nized criminals and not also enjoyed by ordinary people with their shared human values? Our own Parliament has just passed a law that would allow it to make Britons with no other nationality stateless (once more in the name of combating terrorism).26 Th is is an all too familiar reminder of the meager protection of citizenship compared with that of humanity. To replace our Human Rights Act with any bill of rights based on nationality would be the path to Guantánamo Bay (where the US government notoriously interns non- American “ enemy combatants” without charge of trial) at a very strange moment to be making that pilgrimage. Snowden’s revelations once more demonstrate the way that governments exploit weak domestic protections for nonnationals to spy on each other’s populations and then swap the material.

In short, this is an ever- shrinking, interconnected world, and our choice as demo crats seeking our dignity and that of f uture generations is whether to seek the protection of being humans everywhere or the vulnerability of being foreign nearly everywhere on the globe. I know which I prefer.

Five years ago the late great jurist Lord Tom Bingham addressed Liberty’s seventy- fi ft h anniversary conference. Aft er listing some of the values that I have attempted to set out, he left us with the following thought: “Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfl uous, unnecessary? Are any of them un- British? Th ere may be those who would like to live in a country where these rights are not protected, but I am not of their number.”27

Nor am I.

Notes

1. See http:// www . liberty - human - rights . org . uk / who - we - are / history for more information about Liberty and the NCCL.
2. See, for example, Chris Grayling, Conservative Party Conference Speech, 2013, http:// www .c onservativepartyconference . org . uk / Speeches / 2013 _ Chris _ Grayling . aspx.
3. Universal Declaration of Human Rights (UDHR), Article 23.
4. UDHR, Article 24.
5. UDHR, Article 25.
6. UDHR, Article 25.
7. UDHR, Article 27.
8. Constitution of the Republic of South Africa, 1996.
9. J. Bentham, Anarchical Fallacies: Being an Examination of the Declaration of Rights Issues during the French Revolution (1816).
10. For example, Article 10(2) states: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a demo cratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
11. Th omas Paine, Th e Rights of Man (1791).
12. Human Rights Act of 1998, Section 3.
13. Human Rights Act of 1998, Section 6(1).
14. Human Rights Act of 1998, Section 6(3)(a).
15. Under Part 4 of the Anti- terrorism, Crime, and Security Act of 2001, introduced by the New Labour government following the 9/11 terrorist attack in the United States, the government could detain those it suspected to be international terrorists without trial for an indefi nite period of time.
16. Human Rights Act of 1998, Section 4.
17. Hansard, November 3, 2010, column 921, per the Right Honourable David Cameron, prime minister, when asked about giving prisoners the vote: “It makes me physically ill even to contemplate having to give the vote to anyone who is in prison.”
18. Human Rights Act of 1998, Section 2(1).
19. A v. UK (1998), ECHR 85 (September 23, 1998).
20. Gani v. Spain (2013), ECHR 154 (February 19, 2013).
21. El Masri v. Former Yugo slav Republic of Macedonia (2012), ECHR 2067.
22. Coroners and Justice Act of 2009, Section 71.
23. Eweida and Others v. UK (2013), ECHR 37 (January 15, 2013).
24. Ibid.
25. A and Others v. Secretary of State for the Home Department (2004), UK House of Lords 56.
26. Immigration Act of 2014, Section 66.
27. Tom Bingham, speech at Liberty’s seventy- fi ft h anniversary conference, http:// www . liberty - human - rights . org . uk / media / articles / pdfs / lord - bingham

• speech - fi nal . pdf.