The ‘debate’ over human rights law in the United Kingdom can bring to mind two quotes well-known to history students.
The first quote is from the essayist William Hazlitt (though it seems the original comment from Daniel Defoe cannot be traced):
“Defoe says, that there were a hundred thousand stout country-fellows in his time ready to fight to the death against popery, without knowing whether popery was a man or a horse”.
And in the present day, there are a hundred thousand stout country-fellows who are against human rights law, regardless of it being a means of enforcing fundamental rights and freedoms, or a horse.
“Probably Bismarck genuinely believed in the turnip-ghost which he conjured up”.
Here Taylor is describing Bismarck’s response to the small social democratic movement of the 1880s in Germany. But what hits the spot is that the description conveys both Bismarck’s exaggerated reaction and the sincerity of his fear. Bismarck was not being (consciously) dishonest: he believed there was something of which to be scared.
Those opposed to human rights law, either in general or in its particular manifestation in the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA), have many different motives and attitudes. That is the same of any issue of political controversy.
But what can be detected in some of the opposition are, first, the “stout country-fellows” who are against the notion of human rights law, whatever it may be, and those who see human rights law as a Turnip-Ghost, something they are actually worried about.
There is nothing which can be usefully done with the “stout country-fellows” but what about those who are honestly unhappy with how human rights law works in practice? How do you defeat a Turnip-Ghost?
The term “turnip-ghost” is not much used nowadays.
But the thing to know about a Turnip-Ghost is that (some) people believed it was real.
It is (or was) an English form of the “Jack-o-Lantern”. The Oxford English Dictionary defines turnip-ghost as “a simulated ghost or apparition of which the head is formed by a turnip-lantern,” which in turn is defined as “the hollowed rind of a turnip employed as a lantern; also as a term of abuse”.
And it certainly was a term of abuse. Back in the days when all authors appeared to use initials, it was a frequently used image. In addition to A.J.P. Taylor, there were –
C.S. Lewis, on whether devils are engaged in the disinterested pursuit of something called Evil:
“Mine have no use for any such turnip ghost. Bad angels, like bad men, are entirely practical. They have two motives. The first is fear of punishment…Their second motive is a kind of hunger.”
G.B. Shaw, of Tosca:
“an old-fashioned, shiftless, clumsily constructed, empty-headed turnip ghost of a cheap shocker”
And, more sensibly, G.K. Chesterton, of the modern age:
“If we have no more turnip ghosts it is chiefly from the lack of turnips.”
It is a pity that such a fine phrase is no longer a commonplace.
In a different context, I have used the term “zombie facts” to describe contentions which are repeatedly asserted regardless of the law and the evidence: which stagger on even when shot down.
It is the same with the Turnip-Ghost of human rights law.
Almost every example used by opponents of the ECHR and the Human Rights Act can be quickly shown to be plainly incorrect: for contrary to what is often claimed, the Supreme Court is actually supreme and can (and does) not follow the rulings of the European Court of Human Rights; the rulings of the European Court of Human Rights do not created enforceable rights in domestic law; life-tariffs for those convicted of serious offences do mean “life”; alleged terrorists can still be deported; and, I am not making this up, owning a cat does not mean you cannot be extradited.
But it doesn’t matter.
The Turnip-Ghost staggers on, like its zombie fact allies of the night. Shouting at it accurate information and correct legal expositions will not defeat it.
And this awesome resilience comes from one thing only: those who fear it are quite certain it exists. They are not pretending; they are not making things up out because of mere convenience. They believe human rights law, especially as set out in the ECHR and the Human Rights Act, to be a Bad Thing, and anyone’s protests otherwise should be dismissed as the purring of Fat Cats or as the disgraceful pedantic apologies, by those who should know better, for terrorists and other scoundrels.
The way to defeat a Turnip-Ghost is not by Alec’s smart clever-clever assurances that the law and facts are not as people fear and loathe. When you are confronted by a Terror, such condescending utterances will have no traction. There is something deeper, more visceral, at play. Myth-busting is not enough.
And the fault for this is not with opponents of human rights law, but its supporters.
The positive case for human rights is rarely made in the United Kingdom. In other jurisdictions, such as the United States, it would be unthinkable for a serious politician to campaign on removing the constitutional rights of citizens. And it would be just as unthinkable for the American popular media to seek repeal of the US Constitution’s First Amendment (which guarantees the freedom of the press).
Sunlight is not flattering for a Turnip-Ghost. It ceases to look scary; in the daytime it looks just like a carved turnip.
Merely correcting those who get human right law is not enough, if that does not dispel underlying anxieties.
Showing how human rights law works in practice and how, in exceptional cases, it provides the means by which judges and public bodies can have sensible regard to fundamental freedoms of those concerned will always be better than mere rebuttals.
Just yelling at people that a Turnip-Ghost does not exist is not enough; they have to see that it is merely a carved turnip for themselves.