Wednesday, January 21, 2009

Bill Of Rights

Parliament's Joint Committee on Human Rights continues its deliberations over a UK 'Bill of Rights', and has published the Government's response to its original report. Frankly, it terrifies me to the core as I see a charge down the path of "rights" instead of liberties...

The Committee notes that the Government has agreed with a number of its recommendations, particularly in recognising the place for developing social, economic and environmental rights in an enduring constitutional document such as a Bill of Rights

Here we see an attempt to use rights to interfere in the political domain. In the future the hands of government will be even more severely limited than they are today, and the all out assault on the liberty of the freeborn Englishman; the shift in principle from the individual to the collective; moves us inexorably in the opposite direction of freedom and towards socialism.

The report is further muddled when looking at the issue of "responsibilities", a fallacious buzzword which distorts the underlying ideological complexity of the issue...

It regards responsibilities as a cornerstone of our democratic society and as such they merit a prominent place in any future Bill of Rights . It appears to have in mind "a wide range of responsibilities in the legal, social and moral spheres." We acknowledged in our Report that responsibilities have some role to play in bills of rights, but we pointed out that they fall far short of being directly enforceable duties.

Of particular concern here is the insistence on responsibilities in moral spheres, which would seem to attempt to legislate morality. What might such a responsibility be? How about a responsibility to treat everybody equally, or not to discriminate? Well that could initiate claims left right and centre and drag hitherto 'human' problems, which are resolved privately between individuals, into the legal domain. And the Government seems to desire a move into very dangerous territory...

consideration could be given "to the degree to which it would be possible to underline to the courts, in more explicit language, the fullest extent of their discretion to factor in the fulfilment of the parties' duties and responsibilities." It also appears to disagree with our conclusion that the Government's interest in "responsibilities" is misconceived to the extent that it is an attempt to "rebalance" human rights law by increasing the weight to be given to considerations such as safety and security

The Government appears to be suggesting that somehow rights can have different importance. And this brings me back to my underlying point that rights, by their nature of positive entitlement, end up being contradictory.

Conservative Home has a pretty good analysis on the problem of rights, though it also fails to grasp the deep importance of liberties, which are protecting, and the problems created by rights, which are empowering...

As our fundamental freedoms are pawned off cheaply, Britain is suffering a rights contagion – with endless novel grievances metamorphosised into human rights.... And the government is contemplating a whole new brand of economic and social rights. Historically in this country, liberty-based rights protected the citizen from the state. But, New Labour’s approach to human rights inflates the role of the state, promoting dependency on it. This creates three problems.

First, legal turmoil. The rule of law requires predictable rules. Yet, the rapid spread of rights creates widespread uncertainty, saddling public servants with stultifying bureaucracy and paralysing legal liabilities...

Second, the proliferation of rights - through judicial legislation at the European Court of Human Rights, exacerbated by the Human Rights Act – conflicts with basic principles of democracy. New law is created - and public services prioritised - by lawyers and judges in courtrooms, when they should be debated and decided by elected law-makers.

Third, the expansion of novel rights – and accompanying compensation culture - undermines social responsibility. Parents, police and teachers have been shorn of their traditional respect. The public just see common sense turned upside down. The right to family life now facilitates divorce. Prisoners claim the right to twigs to practice paganism in their cells. And a paratrooper, who lost his legs and suffered brain damage from a Taliban landmine, has to haggle for the same compensation that a transsexual soldier gets for injured feelings, having been required to wear a male uniform. 

Indeed. Many politicians and commentators see rights and liberties as one and the same thing - both, they see, are there to protect the individual. This, however, is not the truth. Liberties create a 'bubble' of safety around the individual to protect them from the state and also from their fellow men. Rights erode those bubbles of freedom by laying entitlements upon some people and corresponding obligations on others. That is not to say rights are wholly wrong in themselves, but rather that they must be understood and seen for what they are, and most certainly not confused with liberties.

Gordon Brown said early in his new Premiership that people have a freedom not to be blown up, and that to protect this 'freedom' the government needed to take other freedoms away. Not only is this deeply incorrect and contradictory, but 'rights' are being used as justification for the erosion of liberties. Ultimately, not only is it a lesson borne out historically time after time, but the erosion of liberties does little to increase security, and generally reduces individual security as the power of the state grows.

The legal power to take action against nuisance neighbours who continually play loud music late into the night could be interpreted as a right to reasonable peace within one's home, however if that were a legal right it would lead to a myriad of cases and used in the most bizarre of situations. Instead, awarding the specific power to erode the liberty of another person where they are infringing on your liberty, is both morally sound but also specific and explicit and unlikely to 'creep'.

Britain needs a true Bill of Rights; one which clearly sets out the limitations of the state and which erects a solid ring of steel around individuals. What we do not need is a bill of enshrined rights, which lay entitlements and obligations on citizens.


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