Shifts in the Human Rights paradigm in the EU.
The definition of Human Rights has varied over time and space, which is no mean contradiction: what is the meaning of HR, if they are not universal ? Culturally specific rights may be construed as “rights” in a given context, but not as HR, unless one adopts a broad definition of HR, as any right enjoyed by human beings. This curious definition would lead us to define as “Socialist” any policy followed by a Socialist government, which might be a tall order. Over the last period, significant changes have taken place in Europe, and particularly in Britain and France, in the way HR are presented in public debate, construed by intellectuals, and upheld by institutions and NGO’s.
Discriminations or civil liberties ?
The first shift is the increasing dichotomy between the agendas of public institutions in charge of the promotion and defence of HR on the one hand, and public debates on the other hand. Public institutions have become very professional, and have broadened the scope of their “terms of reference” and concerns considerably. This is true of the French Haute Autorité de Lutte contre les Discriminations et pour l’Egalité, of the Equality and Human Rights Commission in the UK, and of the Fundamental Rights Agency recently set up by the European Union in Vienna. The evolution of the three institutions is a clear case of Europeanization .
No institution existed in France before the Groupe d’Etudes sur la Discrimination, which became the Groupe d’Etudes et de Lutte contre la Discrimination, and eventually the Halde, which is both a government agency in charge of making pronouncements and a body which can help plaintiffs prosecute discriminators. It acts as a lobby and an ombudsman, and this is reflected in its rhetoric. In practice, most of its activities concern the different types of discriminations individuals might suffer from. Over the last year, 40 cases were concerned with handicap, 50 with “origin” ( what the British would call “ethnicity”), 16 with religion., and many others with varying issues, such as age or sexual orientation or gender. Some of the cases quoted on the web site are clear, others are highly controversial or provocative, such as the pleas in favour of the Islamic veil, coming from fundamentalist quarters, or the demand for a lifting of the ban on the local appointment of policemen in the Overseas French Départements of Guadeloupe or Reunion. This approach is very new in France, but commonplace in the UK. The Halde is led by a board of respected and experienced figures, who are appointed in their personal capacity, but have no mandate from anyone, and are therefore not equipped to deal with controversial political issues.
The British EHR Commission deals with a lot of issues. It has considerably broadened the scope of the activities of its ancestors, the Commission for Racial Equality, and the agencies in charge of gender and disability; Indeed, in its rhetoric, is also encompasses social equality. Trevor Philips, an old master in political rhetoric, made this clear in a famous speech at the Bevan Foundation (sic): “Disability, gender, race, age, faith, sexual orientation. (…)When the Equality Act set out the Commission’s mandate in 2006, it did not explicitly make class a part of our business. Yet, the gap in life prospects that come as a result of the basic economics which divide the rich from the poor are responsible for widespread distress, disappointment and social division” Typically, he added, as if the goal of social equality was not self sufficient but had to be economically justified, “ What is more, as we showed in the Equalities Review, it cost our society millions”. The struggle for human rights is therefore presented by Philips as the continuation of the age old struggle for equality and justice, what the Welsh syndicalist leader and preacher Noah Abblett used to call “The straining of the spirit of man to be free”.
So it seems that the process of europeanization is very much a mutual one. France borrows anti-discrimination policies from the UK, and the UK imports miles of impeccable egalitarian gallic rhetoric. The brunt of EHRC activities seem to be devoted to disability, even though discourse on working conditions, “working better”, is also to be found among the Agency’s publications. Curiously, the implementation of flexicurity and individual working arrangements found their way on the human rights agenda. In practice, human rights are now invoked in unlikely places, with unexpected consequences. The 2006 review of the Human Rights Act led to a number of criticisms, on the grounds that hijackers could not be sent back to their country of origin, since they ran the risk of being tortured, or that sex offenders had to be released, and were offered new opportunities for crime. This was a narrow field of application for the Act. Of greater significance still is the fact that notions such as respect, dignity or protection, all worthy ideas, are invoked by people of groups claiming a number of rights, which, for all their importance, are not human rights stricto sensu. This the case in social policy in the field of disability, or long term care, and raises several problems. Social rights depend on the ability of society to afford them, and the State has the duty to maintain a fair and wise balance between the different spending opportunities offered to it, regardless of the ability of claimants to prosecute the Crown or the Republic. Besides, judges, when faced with litigation, can only assess the regularity of procedures. They focuss on the process, not on the technicalities of the issue, thus ignoring the fact that the devil concentrates on details. They encourage the practitioners of social policy to be extremely attentive to processes, which is time consuming and costly, and to shun or limit the scope of discretionary decision making, which is open to criticism and litigation, but sometimes essential in social policy. Finally, claimants and NGO’s awareness of the avenues opened to litigation by this broad understanding of what HR are about changes. Not just rights, but Human Rights are thus embarked in a dynamic process in which demands are constantly stepped up. Even if “group rights” are not accepted by the law and by the epistemic community, some groups are more vocal than others, and vague emotional notions such as respect or dignity offer wide avenues for ratchetting up demands and claims. This creates an unhealthy situation in which equality between citizens is ignored, and individual characteristics take precedence. Belonging to a target group opens specific rights.
At the European level, the situation has also changed a lot. For a long time, Human Rights were the preserve of the powerless Council of Europe. The EU gradually awoke to the necessity of fighting racism and xenophobia in practice, and not just by making correct pronouncements everyone ignored. The European Monitoring Centre on Racism and Xenophobia was created in 1997, several directives were passed, and in 2003, it was decided to broaden the mandate of the EUMC. In 2007, this was replaced by the Fundamental Rights Agency in Vienna, whose brief was determined by the European Multiannual Frameworks. Its task is not to replace the national agencies, but liaise with them, support them, and “provide them with expertise when implementing community law”. It acts as a “second line”, not as a “front line”. Individuals are supposed to resort to their national agencies in order to ask for redress or support. The FRA is naturally bound by the principle of subsidiarity, and only deals with the implementation of EU legislation, not national ones. Given the amount of legislation produced by the EU, and the need to make national laws compatible with EU ones, this is nevertheless very significant. The shift from EUMC to FRA has, as was the case in the UK, broadened its ambit. Even though, in practice, it is driven by shifts in political and social agendas, as highlighted by the prominence of the Roma issue in its recent activities, it is also supposed to be concerned with asylum policy, border controls, participation in decision making, the information society, and the independence of the judiciary. In fact, it is mostly concerned with research, data collection, harmonizing national systems, ensuring the comparability of available data, capacity assessment of human rights institutions and NGO’s.
The FRA is therefore supposed to go far beyond “race and gender” as cultural studies would have put it in the 1970’s.
The state and civil liberties.
The most striking feature of those three institutions’ work is the remarkable gap between their agenda and the serious challenges to civil liberties and human rights anti terrorist measures and legislation represent in the EU, and in Britain and France in particular. The main differences between the bulk of the agencies’ work and this question are of course due to the fact that in the first case, individuals are personally concerned, and try to obtain redress with the support of a public institution, whereas in the second one, only general principles are at stake , individuals are only concerned potentially, and the origin of the problem lies in the States themselves. Questioning official policies is a difficult task for public bodies . The plight of the Commission Nationale Informatique et Liberté, is a case in point. This body was created in 1978, in order to prevent the interconnection of official data bases. It is supposed to monitor legislation, and to exert control on data processing, by public or private bodies. In practice, like the HALDE, the EHRC and the FRA, the CNIL has proved unable to comment upon the recent debates on data processing, and to keep abreast with changes, let alone to oppose controversial measures.
The evolution of technological surveillance has been driven by two factors: the need for a response to the terrorist offensive carried out by Muslim fundamentalists on the one hand, and the evolution of technologies on the other hand. The political context in which the anti terrorist measures were taken varies widely from one country to another. Leaving aside party political issues, the main opponents to the measures were to be found among the Human Rights lobby, which is often considered as a predictable, systematic and sometimes obsessive critic of government policies, and is suspected of not taking the fundamentalist threat seriously. The changes induced by technology have a considerable impact. Automatic data processing has its own logic. The manual files of yore, or the memories of nature’s Fouchés and Condés, limited investigations to a ring a suspects, and required the creation of a narrow cohort of people under investigation, since there are limits to the number of features a human brain can mix together and sort out. Conversely, the logic of automatic data processing is to use the widest possible data base, so as to put together clues or features no human mind could have possibly matched. This is done automatically and in real time. Data mining and profiling have now become a fine art, and are done automatically. As far as citizens are concerned, the creation of data bases has no impact on their lives, and they do not even know about it, which makes the collection all the easier. This is the reason why, in the UK, electronic surveillance and data bases are not seriously opposed, whereas the identity card is seen as unacceptable, since even innocents would have to carry it at all times.
DNA printing and recording has made identification faultless, and opens up exciting opportunities for forensic science and policing in general. The number of recorded prints in the UK is around 5 million. Strangely enough, the criticism has centred on whether minors suspected of committing crime should have their prints taken and processed, and on the fact 40 % of adult black males had their prints recorded, whereas this was only the case for 13% of Asians and 9% of Whites. Those criticisms are on the one hand emotional, and on the other hand naively politically correct. In the case of Blacks, this only proves than more Blacks than Whites are suspected of crime, or at least get caught. As for teenage crime, it is a reality which the media find very sad and worrying, which does not necessarily mean it is a new or unknown feature in Britain. The real issue is whether the creation of a national data base including a very significant part of the population, and potentially the whole population, is desirable from the point of view of human rights, and compatible with civil liberties. This question is put forward by NGO’s, both traditional and recent.
The problem in the UK is somewhat obscured by several cases in which important data, involving large numbers of people, were lost by official agencies. One would gather from the debate that the problem is the inefficiency of the government agencies, and possible leaks or thefts, whereas the real issue is, on the contrary, the extraordinary efficiency of the system.
The issue of interconnection is still very serious, but the regulations preventing it have been made obsolete by technological changes. The speed of processing makes it easy to consult unconnected files, even without resorting to illegal searches. The demand by the US authorities for all European airlines to provide information on their passengers, including personal data and the means of payment used to purchase the ticket was eventually accepted by Europe, and enables the US to compile connected files of passengers, credit card numbers, previous flights, address, age, occupation, leisure, and possibly medical details.
Compared to this, the cases of overweight passengers being required to pay an extra charge on airlines, or of disabled passengers being treated rudely by incompetent or badly trained staff appear as minute, for all the merit of the case. Customers and passengers are human beings that have rights, but those rights are not necessarily “human rights”.
In both Britain and France, limits on civil liberties seem to have accumulated over the years, and have occasionally brought about crises in which the governments backed down, at least in their public communication. This was the case in the UK over the proposed detention without charge of suspects: the government asked for a 90 day period, a historical record, and had to accept 28 days. In France, the debate took place in the autumn of 2008, over the proposed file “Edvige” which was meant to include very personal data, including medical and sexual record . Leaving aside the gallic distaste for the idea the state would pry into one’s intimate life, the crisis also highlighted the different approaches between France and the UK. In the UK, the law is expected to provide a broad framework in which the security agencies will function. In France, legal frameworks are never broad, but are very specific. This leads the security agencies to function without any legal framework at all, as the supporters of Edvige on the government’s side pointed out. The files of the Renseignements Généraux and the Gendarmerie are a homage to French bureaucratic obstinacy, and will some day provide useful primary sources for historians, even though they have no legal existence. The Edvige project was modified, the medical and sexual data being excised from the files. In spite of the British preference for a legal framework, it is doubtful whether the activities of the international eavesdropping network operated jointly with the US, Echelon, are legal, and respectful of foreigners’ freedom and rights.
In both countries, CCTVs, the establishment of huge national data bases, which can be accessed by the police forces of other European countries, DNA recording constitute huge challenges to human rights … and are not addressed by the official agencies. Another problem can be raised, that of the difference between theory and practice, in relation to the key issue of communitarianism.
Equality of Community ?
On paper, the egalitarian credentials of all the Human Rights Agencies are impeccable. Trevor Philips has distanced himself from the multicultural policies Britain used to promote, and which were in fact gradually questioned and abandoned after the Satanic Verses affair in 1989, the riots in the North of England in the 1990s and 2001, 9/11, and the bombings in London in July 2005, perpetrated by second generation immigrants whose integration seems to have been somewhat lacking. Indeed, Trevor Philips is a vocal critic of the communitarian policies Britain used to be famous for. On April 20th 2008, the anniversary of Enoch Powell’s Rivers of Blood speech, he delivered an address in Birmingham summing up his views on the demise of divisive multiculturalism: “(…)The Powellite attack on integration so scared away lazy officialdom that they colluded with old-guard ethnic leaders to warp a progressive and very British recognition of diversity in the early nineteen eighties into a bureaucratic version of multiculturalism which today keeps many communities closed and separate. We know the result – people who want to scale the cultural walls that separate them are blocked by institutions which insist on pigeonholing them by their race, colour and religion. “
A very subtle balance is sought between “diversity” and the sharing of common values within British society i.e. human rights. : “The equality of women, the protection of children, can never be modified by cultural tradition. Where fundamental protections are not undermined, we have to be ready to accept that minorities have the right to be different. “ The best example Philips found to illustrate this was to say: “forced marriage is illegal, arranged marriages are not”.
Likewise, the European Fundamental Rights Agency asserts that the values of the EU must be respected by all, including migrants: “The uniqueneness and freedom of the individual, freedom of expression, equality between men and women, non discrimination, including sexual orientation … clash with the perception of religious duties of certain individuals or faith groups. It has to be respected.”
The mission statements of the EHRC, of the FRA have been considerably expanded. Whereas they used to be mostly concerned with race , to some extent gender and disability, they are now given responsibility for all discriminations, and, so it seems, all breaches of fundamental rights. They are in some cases undistinguishable from the ombudsmen, or the Spanish “advocate of the people”, who mostly dealt with relationships between citizens and public services. Clearly, no one would agree to classify any right as “non fundamental”, which potentially turns any right into a human right.
The emphasis on equality is all the clearer since Harriet Harman announced in June 2008 that the government was working on a new, Single Equality Bill. The question of equality brings the labour government closer to the original problem it stemmed from, that of the relation between the world of labour and the world of the property owning classes, an issue New Labour carefully kept its distance from under Tony Blair’s premiership. The “return of class” appears clearly, again in Trevor Philip’s rhetoric, as appeared in his Bevan speech.
The French Halde is also supposed to deal with rights at work, in particular the victimization of trade-unionists. In the French context, the linking of human rights and social rights is less unusual.
In spite of this rhetoric, the practice of the Agencies is very different. They are called upon by individuals asking for redress, whose cases fall within specific categories: ethnic minorities, religious minorities, the disabled. The bulk of their work buttresses that of specific groups or “communities”, some of them very militant and well structured, who use the agencies for their own ends, without any concern for the bigger picture. The case of French West Indian nationalists using the Halde in order to obtain the local appointment of West Indian policemen is a good example of this. It is naturally against the rules, and potentially against citizens’ human rights, to appoint policemen in communities they have strong family links with, so as to avoid nepotism and corruption and to guarantee impartiality. But in this case, at least, the plaintiffs remain within the “republican consensus”. Another, much more lethal community, that of Muslim fundamentalists, has been campaigning all over Europe, presenting any criticism of Islam as “islamophobia”. This term depicts critics as suffering from a mental disease, a “phobia”, when many criticisms of Islamic theory and practice are indeed perfectly rational. However, the FRA uses the term, in a rather unreflecting manner.
Ambiguous terms are systematically used whenever really controversial issues arise, such as that of the Danish caricatures, which offended fundamentalists: “Freedom of expression is not an absolute right”, as the FRA writes, could be considered as a very controversial statement. Freedom of expression does include the right to offend.
In many cases, the right to promote one’s personal religious identity, is turned into licence for proselytizing, putting forward the most extreme versions of religious doctrine and exerting pressure over one’s kin. In France, the Halde systematically provided support to veil wearing ladies, and only adopted a very narrow interpretation of the law banning the veil in schools. Even adult education sessions taking place in regular schools were considered as outside the range of the law against the veil.
In Britain, the EHRC is called upon regularly to increase the protection of consumers and users of public services, and in particular to extend the rights of the disabled. This represents a large part of its work, in practice.
The egalitarian discourse, in practice, often legitimates communitarian approaches.
Taking the politics out of policies.
The Agencies obviously to their best to act in the most professional of ways. Indeed some Masters programmes are now designed to train young researchers for jobs in what used to be called the race relations industry, and what could now be called the antidiscrimination or “human rights” business. Very high standards are set by the FRA in terms of social sciences techniques, data collection, comparisons. This is necessary and very encouraging. However, the technology itself is far from innocent.
The idea that experts alone can identify good practices on technical grounds, and are therefore the legitimate decision makers is just plainly wrong. This just adds one more stone to the wall of the “democratic deficit” of the EU.
Ethnic monitoring is a sociologist’s dream and apple pie, but, given the right political circumstances, it might well pave the way to tomorrow’s extermination camps or compulsory repatriation detention centres. Europe has a wealth of experience in such matters. The EHRC web site features an interactive map of Britain and British cities, highlighting the areas where ethnic minorities live, including Jews, who have resided in Britain since their expulsion by Isabella the Catholic in 1492. This in encouraging, and heralds a long era of prosperity for the students and managers of “ethnic diversity”. Ethnic monitoring remains a burning political issue, not a technical one.
Especially difficult issues, on which European countries differ, and which are controversial even in domestic politics, are either taken for granted or ignored. The issue of minority languages, which has largely mobilized the supporters of regional nationalisms, who threaten the national unity of countries like Belgium, Spain and possibly France, is treated lightly, as if a European consensus existed. Refusing religious symbols in the public sphere, especially schools, is a policy option which member countries like France, or potential members like Turkey have adopted, and which deserves serious consideration. Such choices must be made by legitimate institutions, not by experts. There is no such thing as a universal “good practice” on how to deal with this.
The definition of human rights is increasingly problematic, since the original commission of the human rights agencies has been gradually increased, and the pressure of specific groups has intensified. During the two and a half decades dominated by neo liberal thinking, the struggle against discrimination was part and parcel of the liberal approach, and consisted in improving the fairness of competition. Opportunities must be equal for Adam Smith’s competition to be really pure and perfect, and for the ethically-minded liberals to sleep peacefully. This period has come to an end for several reasons. The system is now torn by an intractable internal contradiction, between the need to protect individuals from discriminations and the need to avoid communitarian policies, and the break up of society into groups.
The issue of social inequalities, not between groups with specific characteristics, but between the rich and the poor, has come back with a vengeance. Inequalities have never been so great, and the end of prosperity deprives societies of the compensations they could offer to “the other half”. The legitimacy of the whole social fabric is therefore again questioned.
In France, social rights were included in “human rights” at an early stage, for reasons holding to the way social regulation was organized in the country. Contrary to countries where social negotiation between employers and employees took place directly, such as the UK, France was regulated through political action, social crisis, and state intervention. This explains why social rights were often linked to human rights: they were given legitimacy, and engraved in marble in universal declarations, including the 1948 one, written by René Cassin..
The human rights agencies are therefore in a double bind. They largely ignore the serious challenges to human rights and civil liberties brought about by the struggle against Muslim fundamentalist terrorism, itself a current openly opposed to human rights. Simultaneously, under the pressure of sectional interests, they are led to include, within human rights, all sorts of rights, some of them legitimate, and to embark upon or reinforce the communitarian, sectional practices which they are supposed to reduce.
The case for defining human rights in a truly universal way has never been so great.
On the evolution of national institutions in charge of human rights, and their relationship with supra national bodies, see : Gerard Fellous, Les Institutions nationales des droits de l’homme. Paris, La Documentation française, Commission Nationale Consultative des Droits de l’Homme. 2006.
See the article by Patricia Kinder Gest, « Convention européernne des droits de l’homme et loi sur les droits de l’homme de 1998, ou la difficulté d’être vraiment européen ». In Agnès Alexandre Collier, Bernard d’ Hellencourt, Pauline Schnapper, ed. Le Royaume Uni et l’Union Européenne depuis 1997. Dijon, Presses universitaires de Dijon, 2007.
See: Liberty ( http://www.liberty-human-rights.org.uk/), in France, Ligue des Droits de l’Homme http://www.ldh-france.org/
http://edit.equalityhumanrights.com/en/newsandcomment/speeches/Pages/powellspeech. p.7 Consulted on October 10th 2008
House of Commons and Minister for Women and Equality by command of Her Majesty