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In a recent speech, Home Secretary Theresa May claimed that Britain “should leave… the European Convention on Human Rights (ECHR) and the jurisdiction of its court”.

To give the comments their proper context, they were advanced in defence of Britain’s membership of the European Union; in particular, that calls for Brexit based on anti-human rights arguments were misplaced, as it is British membership of the Convention, not the Union, that leads to domestic courts being bound by supranational human rights jurisprudence.

Employment LawyerNonetheless, the comments are deeply concerning for a number of reasons. First, it was a clear expression of May’s personal convictions about Human Rights. This would be troubling enough in and of itself in her role as Home Secretary, but with Boris Johnson gambling so much on an “out” vote in the EU referendum and George Osborne damaged by his proximity to Cameron, Theresa May looks a good outside bet to be the next Tory party leader and with it (potentially) the next prime minister.

Second, while leaving the Convention does not reflect current Tory policy, the tactic of floating initiatives through senior cabinet ministers to test public reaction before formally adopting them has been employed by Cameron in the past. Part of Cameron’s enduring political guile is his ability to surround himself with people who are willing to throw themselves on top a pin-pulled public relations grenade for their leader: think Michael Gove, Nicky Morgan, Nick Clegg, to name but a few. Leaving the convention could well be the latest policy Cameron is ventriloquizing into the media echo chamber through one of his allies: if the reception is negative, it will go down and take Theresa May with it; if the reception is positive, he’ll no doubt happily swoop in and take all the credit.

Third, the comments mark a distinct escalation in the Human Rights battle which is just part of the broader conflict the British right wing is having with itself. Twelve months ago, while the Tories were still in coalition with the Liberal Democrats and fighting an election against a fairly sanguine Labour party, such a high ranking officer as May would never have come out with such an extreme position as withdrawing from the Convention entirely.
However, since the rise UKIP in the 2010s to the political mainstream, the Tories have been forced to fight on two fronts: battling a center-right New Labour on their left and the far right UKIP on their right. The trenches on the left-wing front are dug deep and static, but the theatre of conflict on the right is far more dynamic. This leaves open the question: how far to the right could the Tories go? Cameron has already conceded the EU referendum amd the next battleground looks set to be Human Rights. Already the repeal of the 1998 Act has been taken as received wisdom; it looks like withdrawal from the Convention entirely could be next.

But to what end? Human Rights are in the crosshairs for no better reason than that they are a convenient vent for the right-wing tabloid media. Terrorists, immigrants, the unemployed, trade unions: all the usual Daily Mail bêtes noirs seem to benefit from the Human Rights Convention. This slapstick sensationalist approach has allowed the right wing media to recast Human Rights as something touchy feely; the ideological lovechild of 1960s and 70s hippy liberalism, and Tony Blair tactile big-statism.

In reality, however, the converse is true: the fundamental, primary concern of Human Rights is with the limiting of state power; Human Rights are the direct idological descendants of and heirs to the 18th century enlightenment thought that first found its voice through the French and American revolutions. Human Rights won the argument over the course of the next century and a half: Europe’s unenlightened plutocracies fought a destructive war between 1914 and 1918 that displaced two of its most enduring autocratic dynasties—the Romanov Tsars of Russia and the Hohenzollern Kaisers of Prussian Germany—and replaced them with new tyrannies drawn from utopian death cults; Soviet Communism in the case of the former, Nazi Fascism the latter. Cue a second destructive, all consuming war from 1938 until 1945. The ruins of Europe that fell to the West of the iron curtain were forced to conclude that in the age of industrial warfare, unlimited state power inevitably leads to bloody ruin and that Human Rights were the sole effective method of limiting said state power.

But this is history, and what Theresa May is talking about is politics. When viewed in the historical long run, it is entirely predictable that in or around 2016, membership the European Convention on Human Rights is an acceptable sacrifice for their own political ends: the Convention is merely the terms of the peace reached in the years following the two world wars. The current government is one of the first those wars not to involve anyone who is old enough to recall witnessing them. The generation take the peace for granted and the significance of (and reasons for) the terms of the peace become neglected.

This pattern of abandoning settlements once the generation who created them die out is nothing new: it forms part of a historical cycle that Europeans seem destined to repeat over and over: the horrors of the 16th century wars of religion were only put to bed by the terms of the Peace of Augsburg in 1555; by 1618 these terms were forgotten and the Thirty Years War began. The thirty years war was only assuaged in 1648 by the Treat of Westphalia; the Westphalian settlement survived largely until the Napoleonic wars from the 1790s until the Treaty of Vienna in 1814; a further hundred years post-Vienna passed until the First and Second World Wars from 1914 until 1945, and the European Convention. The question must surely now be for how long will the terms of the current settlement endure? Islamic terror and the migrant crisis have energized the far right in Europe who demand a strong response from a strong government; the very thing the Convention is designed to prevent.

How long will Human Rights hold out against these threats? Such considerations are beyond the scope of a mere Employment Law blog, but in a more banal sense, the Convention does operate in a number of day-to-day ways to protect thousands of individuals from state intrusion. We find this not least in the field of professional regulation, where Thompsons represent hundreds of registered professionals whose careers are at risk from state bodies such as the SSSC and the NMC. These state bodies retain the right to strike off certain registered professionals, but articles 6 and 8 of the Convention mean that they must act proportionately and fairly in doing so.

Further, while Employment Rights are conferred upon individuals either by Acts of Parliament or directives of the European Union, the right to actually have these rights adjudicated and enforced by an impartial tribunal established by law is derived from art.6.  

The right to freedom of thought and conscience protects individuals in the workplace; they have the right to organise and to join trade unions. Already these rights are under threat from the despicably subversive trade union bill which is set to become the Trade Union Act when it receives Royal Assent next week.

In order to protect these rights it is imperative that all attempts made by Theresa May and the Tory government to bow to populist whims from the far right and the tabloid press are resisted. Collective action and civil disobedience are measures not ruled out by the Trade Unions in resisting the Bill; perhaps it is time for broader sections of society to also follow suit.

Blog by Michael Briggs, Employment Lawyer

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