Why conservatives should defend human rights: The case of racial equality

Considering the experience of black and minority ethnic people in the UK, conservatives have at least two reasons to support human rights. First, human rights should amend if not replace conservative support for a narrow vision of basic freedoms. Racial discrimination has been historically defended on grounds of individual liberty, an argument that that was explicitly affirmed by the Conservative Party until at least the 1970s. Second, human right principles are a philosophically and pragmatically better response than a prominent conservative alternative to what John Rawls calls ‘reasonable pluralism’.

Conservatives since Burke tend to be sceptical of the idea that human rights might be grounded in universal claims about human nature, claims that appear to rest on curious metaphysical claims or ‘nonsense upon stilts’.[1]

At the same time conservatives are deeply committed to the rule of law, and in most cases support the actual content of human rights, even where there is scepticism about their grounding in abstract philosophical claims. Instead, conservatives point to custom or tradition, and suggest that in England (and Britain) a long tradition of rights can be traced back to Magna Carta and further elaborated through incremental parliamentary and social change, notably including the ‘Glorious Revolution’.

There is reason to doubt the accuracy of this standard Whiggish account – an account shared by many liberals and conservatives alike. Instead, I will suggest, conservatives should much more explicitly defend human rights based on the experience of the treatment of ethnic minorities in Britain. 

The need for race relation legislation 

Conservatives should be wary of interpreting common law as inevitably protecting people’s civil liberties and viewing human rights as a corrupting influence on this superior tradition. Under common law English men had the freedom to discriminate on grounds of race, a freedom that was unfortunately exercised over the course of history until the 1960s. As related by Hon. Justice Rabinder Singh, The West Indian cricketer Learie Constantine had in 1944 challenged the Imperial Hotel for refusing to serve him, but the case carried no further weight or protection under common law. At a reception marking the 50th anniversary of the first race relations act in December, Paul Stephenson, the leader of the Bristol bus boycott, related how he was kicked out of a pub for daring to order a half pint of beer, and how numerous police arrived to escort him to prison and then charged him in court with refusing to comply with the publican’s racist demand that he leave.

Cases like these explain why Parliament passed various race relations acts in 1965, 1968 and then 1976. The legislation needed updating in such quick succession because the first act was so weak (in part because of vocal Conservative opposition to it), failing to protect black and minority ethnic people even from the infamous ‘no blacks, no dogs, no Irish’ signs, or from discrimination in the labour market, where it remained legal not to employ someone because of the colour of their skin until the 1968 Act.

At that December reception Conservative MPs including Maria Miller and Kwasi Kwarteng expressed their disappointment but also bafflement at their predecessors’ rejection of race relations legislation. In one way today’s Conservative MPs are right to think that many of their predecessors (and some Labour MPs of the day) were more motivated by explicit racism, but there’s two further lessons for contemporary conservatives.

First, that high-minded or general reference to the ‘rule of law’ or even ‘basic liberties’ have historically proven insufficient to protect the rights and freedoms of disadvantaged and less powerful groups. It’s worth reminding ourselves that rights are always claimed by the less powerful against overweening authority – whether barons on the fields of Runnymede, sans-culottes against the ancien regime, ethnic minorities against racist landlords, or indeed those who today appear vulnerable to mistreatment or even torture by another state, typically (though not always) minorities.

Individual liberty and discrimination

The second lesson for conservatives is that there is a serious danger in appealing only to custom or, indeed, historic Englishness to defend minimalist civil liberties, and not to support human rights. In arguing against the 1968 Act, Enoch Powell’s argument that the black man would have the ‘whip hand’ over the white man was grounded in a view that white English men had the ancient liberty or freedom to discriminate. Powell’s argument was that liberties were for English men only, and not universal.

But however noxious Powell’s particular phrasing, his view that race relations legislation was contrary to English liberty was a key plank in the Conservative Party’s opposition to the 1968 Act. In his intervention in the Commons on 23 April 1968, Reginald Maudling explained the Opposition’s view: “we believe that it definitely encroaches on individual freedom and individual liberty”.[2]

The point of going over this history is not to condemn the Conservative party of the 1960s, or to gloss over reasonable concerns about the efficacy of the 1968 Act. Rather, these arguments are simply a recent example of the argument that liberty entails or requires the ability to discriminate. This was in fact, the more historically common interpretation of English (later British) civil liberties, and not only among conservatives, stretching back at least as far as parliamentary debate and popular pamphlets in the late 17th century that defended the expansion of the enslavement of African people.[3] At the same time as the Glorious Revolution Parliament followed democratic opinion in arguing that the Royal Africa Company’s monopoly on the slave trade was an infringement on English men’s liberties, in this case the freedom to trade in enslaved Africans.

Conservatives after Powell have of course rejected his claim that liberties are somehow unique to or prior for white English men, and it was Harold Macmillan whose ‘winds of change’ speech heralded the freedom of British colonies in Africa. At the same time, however, many conservatives hold to a version of the Whiggish view of the natural or inevitable development of rights first set into train at Runnymede 800 years ago, and have simply placed the various race relations acts within this wider story.

Universal rights 

Instead of seeing race relations acts as an organic and subtle change, we should probably agree with Maudling and view this legislation as a genuine break from a prior tradition. English men previously had the liberty to discriminate against others as a fundamental principle, with Magna Carta and later legislation clearly rejecting the idea that rights and liberties were universal or could be exercised by all. The idea of universal rights, is of course, a core plank of human rights.

By contrast, conservatives from Herder to Burke to Powell might be called ‘multiculturalists’: they believed that rights and customs were not universal, but rather attached to particular peoples and cultures with particular institutions and ways of doing things. An important strand of conservative thinking is resistant not only to the thought that human rights can be universally grounded, but also doubtful that non-English (or non-German or non-American or whatever) people will ever generally affirm English values and customs, including respect for civil liberties and the rule of law, unless they fully assimilate culturally and dispositionally. Powell was perhaps the ideal-type: he supported civil liberties because he was an Englishman, not the other way round. This is quite far from Kantian-influenced arguments about the role of reason in recognising the universal claims of all humans, and ably defended more recently by James Griffin

And it’s not just philosophers who agree about the universality of human rights. The United Nations now has a range of human rights treaties, including the first 1965 Convention on the Elimination of Racial Discrimination (CERD), and the vast majority of nation-states have signed up to these. Significantly, British conservative lawyers (including David Maxwell Fyfe) were the authors of much of this international legal framework, and remain some of its strongest defenders.

English (or British) Conservatives should therefore reject the idea that rights uniquely originated in the fertile soil at Runnymede, both because this tradition has proven inadequate for protecting the rights of ethnic minorities and because those rights are now accepted globally.

Perhaps more fundamentally, the conservative affirmation of liberty of opinion is understood to result in a diversity of views about what matters most, or what John Rawls has called ‘reasonable pluralism’.[4] Reasonable pluralism is a hallmark of an open society; it obtains when reasonable and rational people come to different conclusions or judgments about some of the most significant matter in our lives. Conservatives and liberals, atheists and Catholics may all have reasonable views about such matters, but cannot reasonably expect those with opposing views to simply conform to their position – at least not in an open society.

By way of a conclusion it is perhaps worth clarifying an important difference between the modern ‘multiculturalist’ tradition and the older conservative one. One of the things conservative critics of multiculturalism miss is that most of its defenders in fact hold quite strongly to a conception of universal human rights. While Runnymede and others have argued that we should recognise the historic and ongoing contribution of different cultures to British society, we have explicitly argued, most notably in the 2000 multi-ethnic Britain report[5] that human rights set a limit on how permissive the state can be with respect to cultural difference. In other words, we have argued that practices cannot be accommodated where they violate universal principles of human rights.[6]

The alternative is rather to view non-English or non-Christian cultures as being less committed to rights which instead originate in and can only be contingently grounded by dispositional deference to tradition. Conservatives are right to be sceptical of high-minded metaphysical arguments, but they should be equally sceptical of a fable in which civil liberties have naturally and uncontroversially evolved since 1215 (a fable described by the historian and Supreme Court judge Lord Sumption as ‘high-minded tosh’[7]). Especially in a context where ethnic minorities were denied their basic rights in recent memory, and where ethnic minorities will grow to one-third of the population by mid-century, conservatives should instead affirm the value of universal human rights as the best way to protect civil liberties and ultimately to ensure the long-term stability of British society and democracy.

Omar Khan is the director of the Runnymede Trust

[1] The phrase is Jeremy Bentham’s. See Waldron, J. (2009) Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man. London: Routledge.

[2] HC Deb 23 April 1968 vol 763 cc53-198; Maudling at column 154 http://hansard.millbanksystems.com/commons/1968/apr/23/race-relations-bill

[3] Pettigrew, W. (2015) ‘Civil Liberties and the Genesis of Racial Inequality: Freeing the Trade in Enslaved Africans’ in O. Khan (ed.) How Far Have We Come? Lessons from the 1965 Race Relations Act. London: Runnymede. http://www.runnymedetrust.org/uploads/publications/pdfs/Race%20Relations%20Act%20Perspectives%20report.pdf

[4] Rawls, J. (1993) Political Liberalism. New York, NY: Columbia University Press.

[5] Often called the ‘Parekh report’ after its Chair, Lord Bhikhu Parekh. Commission on the Future of Multi-ethnic Britain (2000) The Future of Multi-ethnic Britain: The Parekh Report. Profile Books.

[6] As summarised in 2000, the Commission explained: ‘Negotiations over contested issues – for example, the content of the national curriculum, sensitivity to cultural diversity in the health service, the wearing of religious clothing at work, equality for women in the home – cannot take place in an ethical vacuum. They require ground rules that provide a minimum guarantee of protection for individuals and a framework for handling conflicts of interest. The argument in this chapter is that such ground rules are provided in part by international human rights standards’ http://www.runnymedetrust.org/projects/meb/reportPartOne.html#building

[7] Sumption, L. (2015) ‘Magna Carta then and now’. Address to the Friends of the British Library, 9 Marchhttps://www.supremecourt.uk/docs/speech-150309.pdf