by Lucy Scott-Moncrieff, president of the Law Society
‘Yes we can’ helped propel a rank outsider to the White House; Gerald Ratner wiped half a billion pounds from his company’s value after an unfortunate choice of words.
Equally, we all know the different messages we are being given when we use ‘strident’ instead of ‘assertive’, or ‘stubborn’ instead of ‘determined’. The establishment of a ‘Nudge Unit’ in government is a recognition that simple language and imagery can be used to persuade people to make different and better choices.
I wonder if we can use language to ‘nudge’ people in the right direction when it comes to thinking about human rights and address some of the damaging myths surrounding the European Convention.
My presentation at the London School of Economics on 22 January proposed that the word we use to talk about human ‘rights’ may be unhelpful to public understanding and support.
‘Rights’ connotes entitlement. Not an attractive trait for the English, for whom these misperceptions are particularly acute, and even less so when it is perceived that those claiming the rights have little to justify any sense of entitlement.
And despite what the tabloids say, human rights laws are alive to the need to balance conflicting rights. But those ‘qualified’ rights sound like you have to qualify to get them, and it always seems as if the bad guys do. I also doubt that proportionality is a common topic on the upper deck of the No 27, so I suggested using the more and sufficiently familiar concept of fairness.
Our human rights law does link the oft-mentioned rights with responsibilities. It does not suggest that rights have to be earned for responsible behaviour, but it does put responsibility at the heart of people’s entitlement to enforce their rights.
Criminal behaviour can lose someone the right to enforce all sorts of rights. And enforcement of rights can be curtailed when, to do otherwise would be to allow someone to act irresponsibly towards the rights of others. The recent decisions on freedom of religion are a good example of this.
I also wanted to make clear that many of the rights articulated in the European Convention on Human Rights (ECHR) were present in the UK long before pen was put to paper to draft the convention. And, in fact, our traditions, heritage, and rights and responsibilities underpin human rights law, rather than being at odds with it.
In a country like ours, with no entrenched laws to protect the rights of people against the power of the state, we have a particular need for protections that cannot be overturned through the ordinary parliamentary process.
The convention is a living document: designed to grow with the societies and people it protects; adapting to changing circumstances and cultures. Of course, it challenges parliament, which is why some politicians are so unhappy about it. But that was always its intention. For 800 years, we have recognised the need to keep the power of government in check; and the ECHR follows a long and glorious tradition born with Magna Carta.
So, if we can unpick all of these myths: what ‘nudge’ statements do we end up with?
The European Convention and Court of Human Rights are not connected to the EU.
Freedoms are ours as a right and no one, including the government, can unfairly ignore that.
Our traditions and heritage, and rights and responsibilities, underpin human rights law.
Our human rights law grows with us, so it may continue to protect us.
It protects us from an overmighty state.
And it is about how we think of ourselves and the sort of society we want to live in. By challenging our choice of words, I hope to encourage a new era for the reputation of human rights law and put it back where it belongs – firmly at the heart of our society.
Lucy Scott-Moncrieff is president of the Law Society. Her speech can be read on the Law Society website.