An alliance of ten human rights groups has taken the British government to the European Court of Human Rights for seven years of illegal secret surveillance of British citizens. Their goal is to challenge a ruling by the Investigatory Powers Tribunal, the regulatory body overseeing GCHQ, MI5 and MI6, which found government surveillance programs to be consistent with human rights and yet held large parts of their investigation in secret.
After exhausting options within the British legal system, Amnesty International and others took the case to the ECHR, which according to international law has a jurisdiction superior to that of the British courts. The only problem is that the two main right wing parties in the UK are both determined to withdraw from the ECHR, which would render any legal challenge to mass surveillance virtually impossible.
The UK has no written constitution, and therefore the only guarantee of human rights comes via common law, jurisprudence, and statutes such as the Human Rights Act (1998), which codified ECHR rulings into the British legal system.
It is the Human Rights Act that the parties of the right, Conservatives and UKIP, would like to repeal. Right wing resentment towards the European Union has increased rapidly since the 2008 financial crash, not, like the Greeks, because of any lucidity as to how the EU’s institutions do the bidding of financiers, but just because it’s foreign.
Despite what Murdoch’s knuckle-dragging readership might thing, the ECHR is not itself an institution of the European Union – it predates it by several decades and, while EU institutions have officially recognised it since 1998, lumping the two together in the name of cheap xenophobia seems to be perfectly acceptable to supposedly informed conservatives who should know better.
Attitudes to Europe as a political and economic unit have long been split in the Conservative party, ever since the formation of the EEC after the Second World War. True Tory rage against the ECHR began when Tony Blair’s Labour government passed the Human Rights Act, which has since been a bugbear for Conservative leaders who have vowed to scrap it on grounds of sovereignty.
During the 2005 election, Tory leader Michael Howard ran scrapping the HRA as a central policy, and in so doing cited several cases which turned out to be distortions or falsehoods. The main gripe of right wing Tories around the existence of the HRA was one of sovereignty, backed up by anecdotal claims that the Act created a jurisprudence that was domineering and weird. Not only do these anecdotes usually turn out to be false, they also necessarily ignore the fact that outside of the HRA there is no real guarantee of free speech, a fair trial and, as the GCHQ case demonstrates, privacy.
The Daily Mail, being Britain’s oldest institution of curmudgeonly conservatism and the source of much populist rankling amongst fearful right wingers, has long fed this appetite for the sovereign right to have no rights. Outside of fulfilling their long tradition of nurturing broad xenophobic sentiments, the Mail’s main complaint with the ECHR was the right to privacy which no British parliament had ever voted in – ignoring the fact that the Human Rights Act that guarantees it was achieved in precisely that manner.
Perhaps this is why since the Snowden files were first leaked, the Mail has without fail sided with GCHQ and the NSA: for its mind-numbing celeb clickbait and evidence-free hate mongering, the right to privacy can only be a hindrance.
The right wing of the Conservative Party has come to have greater influence on the matter since the rise of UKIP – essentially Britain’s tea party – and the subsequent support UKIP has been given by hard right press barons like Rupert Murdoch and Richard Desmond. UKIP’s ranting about human rights and sovereignty has been largely in keeping with those earlier rumbles of Conservative malcontent.
But given their rise from a fringe party to one currently polling at about 13% less than a fortnight before an election, the political terrain on which this debate plays out has changed. The old Westminster parties are suffering a crisis of legitimacy, and fringe parties like UKIP have begun to capture more of the centre ground. They do not need to form a government in order to influence policy – the Conservatives, much like their UMP counterparts in France, are now dancing to the far right’s tune.
As such, the drive to repeal the Human Rights Act is now being pushed by a reinvigorated hard right, who now has the backing of several major media outlets. The divergence between the two parties is more technical than philosophical: UKIP are convinced that only by withdrawing from the EU can they step away from the ECHR, while the Conservatives are nervous of upsetting European markets in so doing.
What really matters, and what they both agree on, is that the current arrangement makes it far too difficult to bully Muslims.
The ECHR may well rule in favour of the human rights groups now taking GCHQ to court for its mass surveillance activities. However, unless the interests of xenophobia and state fascism are combated successfully at home, any human rights court victory could well become void in the near future.