Helena Kennedy


It is a great honour to be invited to give this lecture in memory of one of Labour’s truly great politicians. Nye Bevan is always associated in our hearts and minds with the creation of the NHS, which was probably the greatest triumph ever of Labour in government. I remember my own mother’s story of its meaning to her. As a child her mother had a glass jar into which coins were put weekly, in case one of the family was stricken with illness. Doctors bills had to be paid, no matter how poor you were. But when my mother’s baby brother became ill with scarlet fever, there was no money in there; the jar had been raided for boots – boots so my grandfather, a working-class man, could get to work. The baby died and the family blamed themselves for ever for not keeping the lid more tightly on the jar and for taking a risk that had cost them so dear. That was why the coming of the NHS meant so much to people like my parents and why Nye Bevan became such an iconic figure in their lives.

But there are lessons for us from the creation of this great institution. It was opposed. Just as such change is meeting opposition in the USA. But Labour persisted. They did not worry that newspaper proprietors were hostile and derogatory or that the world of business was opposed or that many professionals were resistant to change. They did not spend all their time seeking approval from those who will never share Labour’s values. They knew that sometimes you have to stand on principle and even make enemies if you want to change ordinary peoples’ lives. As a result of that incredible change in welfare provision there was no going back. Subsequent Conservative governments had to accept it as part of a new settlement – how many of our more recent changes have created that cultural shift? How many are so embedded in the culture that they will survive any change in government? Great changes have to be trumpeted and celebrated and championed when they have teething problems. That is how they take hold in the psyche.

I happen to believe that the Human Rights Act will come to be seen as the reform that was this Labour government’s great legacy.

Before the Act came into existence its critics were legion – and not just on the right. Some left-wing groups saw bills of rights as undermining political activism and as giving too much power to the judges, who were seen as invariably reactionary. The right-wing view was that bills of Rights undermined parliamentary sovereignty – left/liberal invention likely to be used for politically correct purposes reining in the behaviour of the majority in the name of dissatisfied minorities.

I have always believed that human rights provide us with a language for discussing our relationships with each other and with the rest of the world. Too often we speak of human rights only in terms of how they are violated and not in terms of how they can affirm and legitimise the aspirations of a society.

The issue of human rights offers a language that belongs neither to the left nor the right, because it is non-ideological, and can speak to all the peoples of the world irrespective of religious belief or world view, because it is avowedly secular. Rights have to be given the force of law because in that process we link our dreams to the acts of daily life. For me, respect for human rights has to be ever present but currently it is hard for people living around the world not to see the invocation of human rights by western leaders as another example of double speak.

For Kofi Annan, the Secretary-General of the United Nations, human rights are “a yardstick by which we measure human progress.” The language of human rights applies not just to the abuse of others on the grand scale that make international news headlines, it also relates to the small acts of inhumanity which disfigure our lives even in western developed societies. The thread that should run through all our human interactions, as colleagues, as parents, as lovers, as spouses, as neighbours or as strangers, should be respect for the essential humanity and moral worth of the other. The ideas contained in human rights should penetrate the doors of our homes and inform issues such as domestic violence and child abuse, and enter the workplace so that discrimination and unfair treatment should be examined in their context. They should suffuse public services, our schools and our politics. Like the angelus bell or the song of the muezzin, we should hear the ring of their meaning as we go about our ordinary business, aware that they are a conscience call for all of us.

Of course legislation like our human rights act and bills of rights only makes legal demands upon the State and public authorities as to their duties and responsibilities in protecting rights, but if ministers spoke passionately about human rights as ethical standards which we should all meet, with government setting the example, there might be a greater enthusiasm.  When we talk of legislation or treaties or conventions complying with human rights standards it should not be a box-ticking, minimalist exercise but a challenge to speak to the best in the human spirit. Human rights legislation is a strong and angry commitment to pluralism and tolerance, inextricably linked to democracy and due process and in having conversations around the world we have to emphasise that rights are not expendable entities to be dumped when the exigencies require. But can we in Britain do that when in the name of combating terrorism our government removed the right to trial from foreigners if we suspected them of terrorist sympathies, when we now run a system of house arrest – called control orders, which seriously curtail liberty? Can we lecture the world about torture when we have blood on our own hands in relation to rendition or the receipt of evidence in the knowledge it is the fruits of torture? Can we ventilate about the poor when our government sought to remove the most basic of welfare provision from failed asylum seekers? Human rights are inseparable from social justice: they do not exist in a value-free zone. The widening gap between the rich and everyone else is also a human rights issue.

The grandeur of ambition involved in creating a human rights culture should have been seized more vocally by the Labour government. One of the sadnesses I have felt has been the timidity about doing so because of fear and insecurity despite our huge majority. Fear of Murdoch, fear of the tabloids. Yet the story is a very good one.

Ministers felt the need constantly to say this was not just about rights but also about responsibilities –  it did not need saying. The European Convention has never been about naked individualism. The main beneficiaries of the human rights movement have in fact been victims.

Contemporary human rights are built upon a careful and sensitive balance between respect for the individual and support for communities. That is why I feel they speak to everything that socialists believe. Real socialists. That no man is an island; that we are all our brothers keepers; that a society that deems some people more equal than others is no society in the terms that we understand.

There are very few unconditional entitlements in the European Convention on Human Rights. Some rights, like the freedom from torture, are absolute, but most rights involve a careful consideration of the rights of others, e.g. freedom of speech is offset by the requirement not to inflame racial hatred in a pluralist society. There are distinct provisions protecting our ability to form and sustain the human relationships that hold society together, whether the right to family life, freedom of religion, or freedom of assembly which protects our right to organise politically and in trade unions. Human rights do support communities but it should be recognised that sometimes communities can be oppressive – to homosexuals, strangers, women and those who are different. And it is important in our global conversations that we remain true to the tenet that respect for the other does not stop when that other is a woman or a homosexual. There are those who argue that insufficient account is taken of cultural difference when addressing issues of human rights, but I have rarely found a situation where the underlying principles do not have purchase.

In 2002 I acted for a young Bengali girl. She had been left behind in rural Bangladesh with her grandmother when her parents emigrated to Britain with a younger sibling. Another child was born and the older girl was brought over to join her parents. She was only fourteen but was never sent to school, somehow slipping through the local authority net, and instead was used as a skivvy by the extended family. She never set foot out of doors, spoke no word of English and was sexually abused by her mother’s brother. She was too frightened do tell anyone because of his threats and, even when she became pregnant, no one noticed and she remained silent. Early one morning she went into labour, crept to the tiny bathroom in the multi-storey council flat, biting into her own arm to staunch her moans, and delivered a baby girl. When she heard her father get up in an adjoining room, she was in such terror she threw the newborn out of the window.

The miracle was that the baby survived. Still covered in vernix and blood, with a long length of umbilical cord, the mite was found in a grass verge by some passers-by and the police were called. They worked out the trajectory of the fall and started to search the flats, dwelling after dwelling, until they found some blood-drenched clothing soaking in a bucket in the home of my young client’s family. They asked them all to come to the police station, whereupon the father shouted and screamed at my little girl in Bengali, which none of the police understood.  On the way the girl almost passed out from pain and was taken to hospital where she delivered the afterbirth. She told an Asian woman doctor about being raped by her uncle and her terror of what would happen to her.

The girl, who was little more than a child herself, was charged with attempted murder. Her own mother refused to accept that her brother had violated her daughter and rejected her so that she had to be taken into care. The father tried to persuade the police to let him send her back to Bangladesh as she was now worthless, not only unmarriageable but she had also dishonoured the family. The baby, who had a fracture to her skull, seemed to be developing well but also had to be taken into care because she was unwanted by the family. The uncle, who had sexually exploited and terrorised the girl disappeared into the ether, hidden by members of his community so that no DNA could be taken and he could avoid arrest.

I contacted the prosecution authorities to find out why a child who was the victim of crime was being prosecuted on such a serious charge, and met the explanation that it was important to send out a message do the community that babies had a right to life under the Human Rights Act. None of us needed the Human Rights Act to know this, but the more pressing message to the community had to be rather different even if it risked offending some of the elders.

The case came in front of a wonderful judge at the Old Bailey and the young girl was given a conditional discharge for attempted infanticide because it was recognised that what girl and the baby needed were foster care and the support of social services for a long time to come. The judge made clear that others, including the parents, who were really guilty were escaping justice.

The whole wretched saga threw up a range of human rights issues: the entitlement of girls as well as boys to an education, the fact that no child should ever be held responsible for adult abuse, the low value attached to girl children and the lesser value attached to female testimony in some traditions. None of them are issues confined to the Bangladeshi community.

I have represented a number of teenagers who have given birth secretly and killed their babies. This is not a phenomenon confined to any particular class or community. The protection of abusers or the blaming of victims is also not new to me and is also not culturally specific. However, the silence around these issues in some communities is deafening and the men can close ranks to prevent justice being done. It is imperative that respect for cultural difference does not become a mask for unwillingness to tackle difficult issues, especially if the elders of a community are men and may not speak for every part of the whole. If it were not for organisations like Southall Black Sisters and Newham Asian Women’s Project, many minority women would have little support as they struggle against human rights abuses.

Acting for many battered women over the years, white and black, has taught me that communities should not be over-romanticised, since they often support practices which maintain the subordination of women. The language of human rights is a powerful lingua franca which is capable of drawing everyone into a consensus; it should be used at times to prevent communities from exerting unacceptable control over individuals in ways that deny them their right to flourish. The debates on cultural relativism seem arid to me. Respect for cultural difference must never prohibit criticism of the customs and practices that mean inflicting pain or disproportionate punishment or visiting degradation and humiliation on others.

Before the Second World War and the Nuremberg trials, judges the world over said it was not for them to decide what was unjust or immoral: their role was to interpret laws passed by parliament or their government. However, events in Germany showed how a whole political and legal system could be corrupted. Judges and lawyers had sanctioned some of the worst crimes in history; they had provided a veneer of legality for the mass murder of Jews, homosexuals, gypsies, dissidents and many others and by doing so had legitimised a nation’s surrender of its moral compass. They destroyed law and justice. After the war there was a growing international acceptance by governments and by lawyers that it was not enough that the Rule of Law should mean adherence by all to a nation’s laws, properly passed by individual parliaments. Laws had to be tested against some other template. The role of those who administered justice had to be to say NO when the state overstepped the mark. Judges and lawyers had to become whistleblowers, alerting us when boundaries are being crossed so that the slow process of corruption is cauterised before it takes hold. The challenge was to create a set of principles which would act as a safety net within every legal system. Our civil liberties may be vested in us as citizens but our human rights would be vested in our bare humanity, so that even when our civil and political rights are removed we should be able to appeal for protection on the basis of our rights simply as human beings.

In 1951 Hannah Arendt wrote in The Origins of Totalitarianism: “When we stand naked, as nothing but a human being, it is that bare humanity that all of us share which should call upon our compassion. That is what our claim to be civilised means.”

When people talk about rights, they often refer to a “first wave” and a “second wave”. The first wave of discussion came in the eighteenth century, at the time of the French and American revolutions, and in America the understanding of rights was enshrined in their constitution. The Founding Fathers invented a new purpose of government – to protect individual rights from community consensus. Americans today still refer to the concept of “natural rights”, implying that certain rights pre-exist human society; that rights are there to be discovered. The idea of natural rights also entails considerable hostility to state power – and resistance to the general encroachment of state power is a vital part of American culture. It is for this reason that the doctrine does not travel well outside the US. Rights are clearly not natural and different concepts of rights emerge from different societies. And in Britain and the rest of Europe it is recognised that the state can be an engine for change which is beneficial to communities. So while the US Bill of Rights is seen as a landmark, it is a source of inspiration and not a model.

In America 200 years ago the colonising British state may have been the most significant power in people’s lives, but in the modern world a multi-national corporation capable of wiping out the employment prospects for a whole town might pose as many threats to individual rights as democratically elected government.

The American Bill of Rights has not had sufficient elasticity to engage adequately with changed circumstances. For example, the humorous commentator on the American way of life and most particularly on the inadequacy of gun control, Michael Moore, showed powerfully in his filmBowling for Columbine the huge social cost of his country’s gun culture. The individual right to bear arms is privileged over any community interest in a way that could not happen in Europe or here in Britain.

The attempt to exterminate the Jewish people in European gas chambers during the Second World War shocked people around the globe into a rethink of international law. The second wave of “rights-thinking” followed. The difference between the notion of “natural” and individual rights and the post-war human rights movement lies in the blending of individual rights and the concept of community. The star in the creation of a new legal order after the Holocaust was in fact an American, Eleanor Roosevelt, who held the first drafting meeting for an international charter in her Washington Square apartment in February 1947. The gathering was so eclectic it is hard to fathom how consensus was reached for such a visionary and brave project. There was a Chinese Confucian, a Lebanese Christian, a Stalinist from the Soviet Union, a devout Catholic Brazilian and a Canadian law professor. It is often claimed that if the meetings had taken place just five years later it would have been impossible to reach agreement because the Cold War had taken hold and China had become Maoist. However, the group struggled to create what Nadine Gordimer has called the “creed of humanity that sums up all other creeds directing human behaviour”, and in 1948 produced the draft for what was to become the Universal Declaration of Human Rights. The idea was ambitious, recognising that legal systems are distinct and draw upon the cultures from which they spring, but also believing that it was possible to establish a set of binding shared values to provide a backdrop of principle for them all. They had to create a secular document which had all the strengths of the great religions of the world but which spoke also for those who had no religion.

No nation came with clean hands to the table when the final signing took place of the Universal Declaration of Human Rights in 1948. Everyone had their own source of shame, just as today. These were pre-civil rights times and in the United States the legacy of slavery meant black people were still segregated from whites and racist legislation was still on the books. The Soviets were still conducting bloody purges of opponents, and for the British the effects of colonial rule still scarred relationships from Ireland to India.

The drafting committee was aware that the first wave of rights, which had been at the heart of the French and American revolutions in the eighteenth century, sought to set citizens free from the grip of the state and church. But these new post-Holocaust rights were striving to do something else – to create a better world for everyone. And for that to be possible it was not enough to guarantee “liberty”. Individuals require protections from tyranny but they can also contribute to it: for example, persecution because of your race could come from your neighbours. Tyrants do not have to wear jackboots. As I have pointed out myself, they sometimes wear Armani suits.

It was recognised that not only should restraints be put upon states to prevent the oppression of their citizens but ways also had to be found to require states to take a lead in preventing oppression from other sources. It should never again be possible for the state to claim democratic legitimacy or majority will for behaviour that denied any person’s humanity. Violations by private companies or battering by husbands or cruel behaviour by any other individual, all these had to become the business of the state. That was the ideal, and any enlightened imaginative politician with a vision for revitalising communities has the language at his or her disposal.

The Universal Declaration of Human Rights spawned a new generation of rights, more textured but just as far-reaching as those of the Enlightenment, based on the values of liberty and justice, dignity and equality, community and responsibility; they are at the heart of the European Convention of Human Rights and our own Human Rights Act, but also at the core of many constitutions around the world.

Contemporary human rights allow people to live in society free of discrimination or oppression but recognise that we all have duties to the community, as distinct from the state, “in which alone the free and full development of personality is possible.” There are now over 50 international and regional human rights treaties and conventions which have developed out of the Universal Declaration and they all seek to balance collectivism and individualism. How could it have been otherwise when you look at the moment in time and the nature of the signatory parties, some of whom were collectivists with little commitment to the needs of the individual? This was the late 1940s: the woman chairing the process was a committed New Deal Democrat who believed the state had responsibilities to poor communities. This post-war period was also the generator of welfare state commitments all over Europe. The state’s role was changing as it helped to provide welfare, health and education. The document’s whole purpose was to balance the idea of the needs of the society as a whole with the right of individuals.

Communitarian ideas in the United States are a direct response to this absence of second wave rights in the original United States Constitution and due to the fact that although the US signed up the Universal Declaration, it never took human rights thinking to its heart. Indeed it took Britain a long time, but a changed world has made engagement essential. In fact, what is now slowly developing in the United States is a campaign for contemporary European human rights, not at government level but amongst community activists and academics.

An interesting gear change on human rights has happened since the end of the Cold War in 1989. The demise of communism was as much about human rights as the victory of free markets. Vaclav Havel speaks of the “revolt of colour, authenticity and human individuality” which he saw at the heart of the waves of change in Eastern Europe.

Until the late 1960s the Universal Declaration of Human Rights was fairly toothless because of deference to the principle of state sovereignty. The UN ruled that it had “no power to take any action with regard to human rights”. It was through non-governmental organisations like Amnesty International and Human Rights Watch, who brought cases before United Nation’s bodies and shamed states by bad publicity, that the concept really entered public consciousness. In the 1970s the UN itself began to authorise reports on specific countries like South Africa under apartheid and Greece under the colonels, which undermined the self confidence of those governments, sustained internal opposition organisations and encouraged international support for regime-change. There have always been easy target states that the West is content to declare pariahs, like Iraq, Zimbabwe, North Korea and Iran. And then there are hard targets like Russia and China, which are treated with kid gloves for political reasons. Double standards and hypocrisy abound, as Mary Robinson found when she was the UN Commissioner for Human Rights from 1997 to 2002. We may voice the notion that the standards are applicable to all countries no matter how powerful, but some powerful countries which are happy to set the norms for others but consider themselves immune – like the United States itself. The failure to sign up to the International Criminal Court, which was established by the Rome Statute in 1998, is a prime example of American exceptionalism. The USA has not only decided not to be a participant, but under a US law passed in 2002 it will cut off military aid from any state which fails to exempt American soldiers from ICC prosecution. Colombia, for instance, has been forced into issuing waivers so as not to lose nearly £600 million a year for its battle against guerrillas and drugs warlords. Similar threats have been issued to eastern European countries: indeed I was present in the office of the Bosnian Foreign Minister in May 2003 when the call came through for her yea or nay. Needless to say Bosnia felt obliged to agree. Croatia, however, was bold enough to refuse. And without any threats at all, the British government meekly signed up to a European agreement of American exemption.

The struggle to create internationally binding norms is greatly undermined when the one remaining superpower refuses to accept constraints upon its own behaviour. The affront to the rule of law and due process in detaining prisoners in Guantanamo Bay without access to lawyers, without charge for the vast majority, and with secret military commissions for the trial of some, has made a nonsense of attempts to draw other less developed democracies into law’s embrace. The US is also the only developed country that has the death penalty in many of its states and until recently used it against children. It is still used against those who suffer mental illness or mental impairment. It is impervious to any criticism of its domestic legal policies and ignores diplomatic efforts to intervene when foreign nationals are on death row. It dislikes the idea of being bound by laws other than those of its own or God’s making

Yet as the chief proponent of the global market, the USA has been anxious to export and globalise commercial law and bind others to it to protect commercial and property interests. Like Britain, it has been actively involved around the world in reforming legal systems to make them conducive to trading relationships and just as our own big city law firms have offices now in Beijing and Moscow, so have the Wall Street firms and the great legal factories of Washington.

Globalisation taught nations like China that if they want to participate in international markets they have to have systems of law which have the confidence of the corporations and trading entities with whom they wish to do business. The Chinese government invited organisations like the British Council to help create a commercial law base and train commercial lawyers; in the wake of that work British lawyers have assisted in the drafting of a criminal law code based on the presumption of innocence. The breakthrough is awesome. But it happened because of the well of trust which Britain has created with many nations over many years, even where history might have dictated otherwise. The progress may seem slow in China but a start has been made. The notion that impartial secular justice is essential to democracy has to continue to be a the front of our minds as we deal with Afghanistan. Trust is the seedbed of good international relations and we may be depleting our store in the Islamic world.

So commercialism has not travelled alone. There is no doubt that the global market fosters new problems, but it has also assisted the spread of human rights. Globalisation has stimulated the migration of people; nations are becoming increasingly multi-racial and the potential for intolerance of difference is great; advances in communication technologies accelerate the speed with which ideas are disseminated. Workers want to be protected from the indecencies of the market and human rights is one of the ways of taming and civilising a rampant global capitalism. This is why there is such ambivalence about this discourse in some quarters and why it matters so much. If we are to find a legal Esperanto which draws all nations into an acceptance of certain norms, a safety net must be provided for those who are most vulnerable. A call that echoes beyond citizenship and appeals to standards based on our common humanity, is essential. And so it is that the asylum issue is the emblematic battleground on which the struggle for human rights is currently being fought.

Being with the British Council gave me the opportunity of taking part in seminars and legal conferences around the globe. What has become clear to me is that the Rule of Law is even more fundamental than democracy and without it democracy is impossible. Visiting Bosnia, I saw that if the Rule of Law is not asserted immediately after a war or a military intervention, then organised crime and other malevolent forces fill the vacuum. Human rights principles create the bedrock, the fortifying base on which the many and varied societies around the world can build legal and social systems which will be respected. All the emerging democracies, whether in Eastern Europe, the former Soviet Union, Africa or elsewhere, will have a set of principles against which their legal systems will be judged. We can only take part in that vital international dialogue if we too have embraced those principles wholeheartedly. Until now Britain has been a model for the world, and we should seek to maintain that role.

While human rights are now higher on the agenda, the very words still create discomfort for some. To those who do not share my own political perspective I must emphasise that human rights are not owned by the left, and nor should they be. They are the product of decent people on all parts of the political spectrum. How else can we talk to the rest of the world about legal standards if we have not adopted the precepts and language ourselves?

No doubt a convergence of many factors explains why a human rights discourse has come of age. The fact that military generals now speak the language of human rights shows that the ideas have entered the mainstream. But although human rights should not be appropriated by the spinmeisters and public relations advisers who people the offices of presidents and prime ministers, or deployed for strategic or tactical purposes or used to masquerade self interest, sadly they are. (After September 11, when the eyes of the West turned to Afghanistan, there was a sudden surge of concern about the treatment of women under the Taliban, a humanitarian urge which has subsided despite continuing abuses. Saddam Hussein’s atrocities against his own people were loudly denounced when people wavered about military invasion: yet our own ministers ran hot and cold on the subject before the call for war.)

It was reported in the New Statesman in December 2002 that an Iraqi opponent of Saddam who sought asylum in Britain had received a letter explaining Jack Straw’s refusal of his application in 2001. It read as follows: “The Secretary of State has at his disposal a wide range of information on Iraq which he has used to consider your claims. He is aware that Iraq, and in particular Iraqi security forces, would only convict and sentence a person in the courts with the provision of proper jurisdiction. He is satisfied, however, that if there are charges outstanding against you and if they were to be proceeded with on your return, you could expect to receive a fair trial under an independent and properly constituted judiciary.” So that was his view just a few months before the invasion of Iraq to bring down a merciless dictator.

How could human rights be anything but bedfellows of socialism? They are bedfellows of any creed or belief system that values the dignity of  every soul on this earth. But we cannot claim them as being exclusive to us. Otherwise we devalue their universality. They must remain free of ideology. Therein lies their strength.

Things are looking bleak – a crisis in banking and a recession, huge debt, threats of cuts to services, a crisis in democracy and loss of trust in our institutions of government. People are poor and getting poorer and the world is burning.

We have to find a language for all this and it is there. We have to remind each other what it means to be human. The only hope for the world is that such a language should be based on human rights and consent.

People are capable of great things. Remember that human beings have created monuments of extraordinary beauty and awesome magnificence such as Westminster Abbey, just across the road from us here, or the great medieval Westminster Hall. Some of the masons who built the cathedrals never lived to see the completion of what they were constructing. Theirs was an act of faith. We too have to believe that one day our great project of socialism and peace in this world will be achieved – but each of us must add our own brick to the edifice.