I am more than usually depressed by the report of the parliamentary Joint Committee on Human Rights that is published today. A Bill of Rights for the UK? is a reaction to the present administration’s kite flying for a “British Bill of Rights and Duties“, and goes to confirm my suspicion that human-rights lawyers are equipped with a tin ear for political discourse as part of their education.
They do not see the fierce conditionality of Rights-and-Duties. They are in their eunoetic little universe of the kindly legislator not the populist fury. Rather than a reaction of horror at the transparent desire to entrench ergate slavery to a corporatist ‘civic republican’ state as a citizen’s lot, there’s a mild whinge that the Government isn’t speaking clearly enough – no grasp that there is a different language in use:
33. We regret that there is not greater clarity in the Government’s reasons for embarking on this potentially ambitious course of drawing up a Bill of Rights. A number of the Government’s reasons appear to be concerned with correcting public misperceptions about the current regime of human rights protection, under the HRA. We do not think that this is in itself a good reason for adopting a Bill of Rights. As we have consistently said in previous Reports, the Government should seek proactively to counter public misperceptions about human rights rather than encourage them by treating them as if they were true.
That I could support. And the discussion in the same section makes some sense of reframing the ECHR and the Human Rights Act to give better protection to individual liberty against the state. However, it doesn’t face up to the Government’s agenda, which is entirely opposite. It doesn’t, as any Bill of Rights worth the name would do, presuppose the implacable hostility of authority to the exercise of freedom.
The rest is horror. Chandler called the game of chess “as elaborate a waste of human intelligence as you can find outside an advertising agency”. You would need to harness a gigantic advertising group – WPP, say – for a full year, to piss away as much brain and education as has been wasted in the construction of the Outline of a UK Bill of Rights and Freedoms. Given the task of criticism and reflection, they have been reflexively orthodox. Not just the committee, but most of their witnesses, have demonstrated that, if it contingently makes the owner deaf to political meanings, the purpose of the tin ear in human-rights legal education is to pour jurisprudential treacle directly into the brain.
The increasingly strained relationship of yoked citizen and official driver is ignored. The basic principle of the Human Rights Act is deemed good enough, despite the hopeless vagueness and pliable nature of most of its provisions. What they want to add are procedural and interpretative twiddles (which it is arguable is all the HRA did anyway) to how state power is exercised. One of those would (inadvertently?) give strong constitutional foundations to administrative rule as separate empire from the rule of law – as if unspinning the fusion of law and equity. Adopted wholesale is the superstructure of “second generation” human rights, social and economic rights. This doesn’t just instantiate the presuppositions of the modern European welfare state as if fundamental to human society, it does the same with the mythic functions of the late 20th century British welfare state:
- Health care
- Everyone has the right to have access to appropriate health care services, free at the point of use and within a reasonable time
- No one may be refused appropriate emergency medical treatment
- Education
- Everyone of compulsory school age has the right to receive free, full-time education suitable to their needs.
- Everyone has the right to have access to further education and to vocational and continuing training.
- Housing
- Everyone has the right to adequate accommodation appropriate to their needs.
- Everyone is entitled to be secure in the occupancy of their home.
- No one may be evicted from their home without an order of a court.
- An adequate standard of living
- Everyone is entitled to an adequate standard of living sufficient for that person and their dependents, including adequate food, water and clothing
- Everyone has the right to social assistance, including care and support, in accordance with their needs.
- No one shall be allowed to fall into destitution.
Note not just the presumption of state largesse, but the paternalistic trimmings: “appropriate”, “compulsory”, “full-time”, “adequate”, “allowed”. This is a profoundly conservative version of left liberal doctrine: backward-looking to the golden age of 1978 (precisely datable by its implicit assumption that coming into force of the Protection from Eviction Act 1977 represents the effectuation of an eternal moral insight); assuming the dominance of the state (these “rights” are bizzarely to be judiciable but not enforceable; and throughout unquestioning of the burden of doctrine.
The clue, I suppose is in the name: a Joint Committee on Human Rights cannot be expected to step outside the nostrums and quasi-religious formulae of the legal-academic establishment that calls itself the human rights movement, and sees the role of the state as promotion of that cause. The greatest horror in the report springs from there: a “duty” for the state of “Progressive Realisation” of social and economic rights:
The Government must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the rights in this schedule.
The one addition to ‘second generation’ rights is also from received wisdom of the age, one that though weaned in the 70s became a commonplace of thought among the common complacent only in the 90s: an ‘environmental right’ to be progressively more governed:
Everyone has the right to a high level of environmental protection, for the benefit of present and future generations, through reasonable legislative and other measures that – (i) prevent pollution and ecological degradation; (ii) promote conservation and (iii) ensure that economic development and use of natural resources are sustainable.
These, in grey general and in Green particular, show forth is a new constitutional principle. Here, explicitly for the first time I am aware of in a (notionally) common law jurisdiction, is permanent revolution: not just a protective welfare state designed to succour the weak (with all the nasty side effects on human freedom that we are used to), but a teleological state with the hard-wired object of transforming society in which the whole body of the nation is laid open for cosmetic surgery.
The Committee is really building on the same New Left foundations that the Government is. The consequence is that, though it thinks that it is repudiating populism: (“… rather than encourage them by treating them as if they were true”), it is providing an apparatus perfectly suited to soft fascism.
With complete lack of self-consciousness, the chairman, Andrew Dinsmore MP has been appearing on the news this morning to say that when people appear at MPs surgeries to demand their ‘human rights’ they mean social and economic rights and do not understand that this is not what the current Human Rights Act covers – ergo perhaps it should. Flattering the casual demands of a clientele with the dignity of ‘fundamental rights’ strikes me as about as populist as one can get. The mysticism of the manor-court. As above, so below.
This what I wrote on the matter –
I’d be scared of any Bill of Rights written today(Link). Sure it would grant me all sorts of worthless rights, but employing an army of tax parasites to enforce them while destroying my real and very valuable civil liberties.
God, I just read it.
What a worthless load of statist twaddle this is.
No chance.
I do not believe that even the Britain of New Labour will accept this trash.
The chair of the committee is Andrew Dismore MP, who is such a big fan of human rights that he’s on record as having voted “strongly for” Labour’s anti-terror legislation, “strongly for” the smoking ban and “strongly for” ID cards. This man is no friend of liberty.
I have not the words adequate to describe the crushing sense of despair with which this has filled me.
Excellent post, Guy. But despite your clarity and eloquence, I fear the ‘debate’ over this will be very difficult for our side to join. I must admit, it’s beyond me to make a persuasive, popular case opposing the motion, ‘No one shall be allowed to fall into destitution.’ We can all see a mile-off the terms of the argument being drawn as ‘are you for or against destitution?’ For? I suppose I must be…
Ham, there’s little that can be done once a civilisation is on a trajectory into insanity. That’s why all civilisations fall.
I cut and pasted “eunoetic” into Google. It returned three hits. Two of them were to this article, once on the front page and once in the permanent link. The third was found in a Google-books entry and was ensconced in double quote marks. I’m sure if I had studied Greek seriously I would be able to form the word’s meaning but it seems unlikely to be drawn from “Eunoia” meaning ‘normal mental health’.
Perhaps you are drawing it from “Eunomia” for ‘ordered’ in which case perhaps we should instead coin the word ‘Eunomaniacal’. 🙂
Apologies for coining. I wanted something parallel to ‘euphemistic’ for the field of political sentiments. It seems to me a natural extension of ‘noetic’ (= of, relating to, originating in, or apprehended by the intellect).
Maybe the word I;m groping for above is ‘apprehensions’ not ‘sentiments’. The latter I am using in too 18th-century a meaning.
Is it anything like “eunoreferendum”? 😉
Not quite sure I understand what you mean here, Guy. Could you elaborate for the benefit of we who are slow of mind?
The Committee is quite reasonably concerned about what it terms “administrative justice”, which might be better called the problem of official power:
128. We welcome the Justice Secretary’s indication that a right to administrative justice is being considered by the Government as a candidate for inclusion in any Bill of Rights. The right to fair and just administrative action is arguably one of the common law’s greatest achievements, and in other countries which have recently adopted a Bill of Rights it has been accorded constitutional status. The South African Bill of Rights, for example, provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair, and everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
The recent, but not totally effective, common law tradition – springing from the very clear outline of the problem by Lord Hewart in The New Despotism (1929) – has been to subject officialdom to the courts. That’s where we get the modern developments of judicial review, the means through which the Human Rights Act takes effect.
It hasn’t been effective, because small-g government has worked its way round the system. I see the Committee’s angle as giving scope for a new development of separate standards of administartive justice, rather than strengthening the grip of the courts.
If you go back a little further into legal history you find equity – the conscience of the King – as a form of arbitrary dispensation exercised in separate courts from the common law. That was administrative justice, too – dispensed directly by an absolute administration and overruling the mere law.
There’s only one Bill of Rights worth fighting for, and that’s the American one, which came from an understanding of the way governments tend towards tyranny if left unchecked. What a shame Tom Paine couldn’t have brought the Revolution home!
What we’re talking about here is based on the opposite, that governments are here to help us, which they’re not, any more than a tapeworm is here to help our digestion.
The key line (without reading the whole steaming pile) is this:
“Parliament may expressly declare in an Act of Parliament that the Act or any provision in it shall operate notwithstanding anything contained in this Bill of Rights and Freedoms. ”
In other words, it’s not worth the paper its printed on.
One of our fundamental problems is that Parliament is sovereign. In a democracy, the people are sovereign. Ergo, this is not a democracy.
I’m seeing an enabler for unbounded political hackery. By declaring the unbridled constitutional authority of their document (and inevitably claiming the sole power to interpret it) it is the foundation for Canadian style Human Rights Commissions writ large. Autocratic rule. They want the power of the SCOTUS but without such a ‘narrow’ scope to work in. The council who would be king.
When you referenced a part numbered “128.” that says all that needs to be said. This document (like the EU ‘Constitution’) is intended to permit anything the people assigned to enforce it want done. I predict without reading it that no rights are protected at all, and that it is merely a description of how their removal may be rationalized. Rights which appear to be protected in one place will be unprotected somewhere else.
… and another thing: The title is Bill of Rights and and and Freedoms.
It’s laying out our freedoms! It’s a Napoleonic Code! Freedom under Common Law is everything that isn’t specifically banned. This is my last comment. I really should try and read past the first page but I fear I will end up throwing my computer out the window.
Thanks Guy, for flagging this up.
Trooper Thompson,
I interpret that line to mean ‘there are no rules anymore’. Declaring themselves the protector of rights and declaring that Parliament may over rule them, they have erased all of common law precedent. The purpose of this ‘bill of rights’ is to remove rights, not enshrine them. When looked at with that understanding, that sentence is not inconsistent. But I think from your 2:02 comment that you are already realizing that.
Midwesterner,
you’re right on the money, with both your comments.
The US Bill of Rights is a defence of the people against the government – the people being sovereign.
Our Parliament, claiming sovereignty for itself, would never allow any defence for the people against it’s own power.
I am actually heartened by what I read here. Ten years ago this bill would have passed, but today? No one accepts this government is acting in good faith. This document is going to be ripped apart even in the press we have today. No one, maybe even including that prize idiot Polly T, will accept this load of crap as anything other than what it is.
If it is passed by Parliament it will be despite universal outrage.
I read the Outline (which is all I could stomach). What an extraordinary (and extraordinarily offensive) document! Whole treatises could be written about its defects. Obviously it enshrines the concept of “positive rights” (i.e., the “right” to demand that the State steal someone else’s property to satisfy your own private needs.) It probably tells you all that you need to know that the very first two “rights” listed (which are clearly superior to all others) are the rights to “Equality” and “Dignity”.
I especially “liked” the part which requires any court interpreting this Bill to “pay due regard to international law, including international human rights law . . .” and to “consider the relevant judgments of foreign and international courts and tribunals.” So the court is to be informed not merely by British law, or even EU law, but anything else which the judge considers to be “international law”. (Here’s a clue: there is no defined “international law”, no comprehensive set of statutes; it’s an evolving set of judge-made doctrines more akin to the common law than to any civil code.)
The fact that the UK is even considering something as despicable as this is truly depressing. I had no idea you were in such a bad way. You have my sincere condolences.
One of our fundamental problems is that Parliament is sovereign. In a democracy, the people are sovereign.
No; I don’t think that’s right. Part of the uniquely British problem is that it is a democracy, of sorts, dressed up as a constuitutional monarchy. The people, through their representatives, are sovereign; so we get a strange mixture of unrestrained populism (where the people are deemed to have a opinion) and administrative expediency (where it is held to be just too complicated for the poor dears represented to understand, and often is too obfuscated for the poor dears who do the representing to bother with understanding).
“No; I don’t think that’s right. Part of the uniquely British problem is that it is a democracy, of sorts, dressed up as a constuitutional monarchy.”
No, no, no. It is a monarchy dressed up as a democracy. Democracy means the people are sovereign – demos is the people. Sovereignty is at the heart of the matter; sovereignty of the individual over himself, and from that original sovereignty the legitimate power of the state is delegated and derived. Reject this principle at your peril.
I don’t know, Trooper Thompson, but if it truly is “a monarchy dressed up as a democracy”, from an outsider’s perspective it seems a curious form of monarchy. Your putative monarch seems completely detached from affairs of state; in fact, I’m not sure what her function really is (other than as a figurehead). What self-respecting monarch would sit idly by and allow all power to be usurped by Brussels? Why doesn’t she simply dissolve Parliament and appoint ministers who will really look after the interests of the nation? Does she have that power? Does she even care?
And, Trooper Thompson, the whole point of a Bill of Rights (as usually understood) is to constrain sovreignty: that the people are not fully in charge, nor is anyone else.
The US Bill of Rights refers to the rights of the people, but is generally taken to protect the rights of individuals, not a collective – whereas the sovreignty asserted in the Constitution and exercised on behalf of “the people” by the branches of government, is a collective. The purpose of that Bill of Rights is precisely to curtail the sovreignty of the people (as a collective demos) in the interest of the people as individuals.
The English Bill of Rights Act was designed, on the other hand, to pin down the exercise of sovreignty by the Crown under the moderation of Parliament and to (re)instate the rule of law. The care for individual liberties that emerges from it is indirect, and arises out of the desire to secure the state against Royal absolutism (and Catholicism).
As I understand it, the “Crown in Parliament” is sovereign, as opposed to the United States, where the People are sovereign. I would like the latter, not the former, which is a muddled stitch-up amongst the ruling class from some centuries ago, and clearly contrary to Common Sense, least Tom Paine’s version. The government wields the power of the monarch. The parliamentarians swear an oath to the Queen, not to a constitution or the people. Likewise, the military swears an oath to the Queen.
The United States is founded on a principle of individual liberty, and God-given rights. The power of the state derives from the rights of the people (i.e the individual rights of the individuals who make up the people). The Bill of Rights does not constrain the sovereignty of the people, but rather defends it from the state. It further enforces the limited nature of legitimate government set forth in the Constitution.
This is a far better foundation for a just and civil society than our tangled mess.
The King/Queen in Parliament is a narrow term that does not contain sovereign rule by the crown.
It’s that “advice and consent . . .” The problem is democracy itself. The Commons has usurped the Lords and the Crown. It is well on its way to usurping the constitution and common law itself. I am afraid that the sovereignty of the people that Commons wraps itself in is itself the mechanism of the creeping totalitarianism.
We have the same problem here but our constitutional structure has done a better job of protecting us (a less worse job?).
The US Constitution has indeed done a better job of preserving our freedoms than has the unwritten British constitution, but I fear that it has only delayed the inevitable. We began the serious dismantling of the Constitution about seventy five years ago, but until fairly recently it has been a difficult demolition job. Now the pace is picking up, and we’re ultimately following the same track as Britain. Our Bill of Rights provided significant protections for individuals, far more than the abomination of similar name being offered in the UK (which, if enacted, will afford no meaningful protections whatsoever), but today it is being honored more in the breach than in the observance.
It was a nice run while it lasted.
A positive human right is a right of all, to all.
And where there be a right of all, to all…
…there be no rights at all.
Mid,
The Commons has usurped the Lords and the Crown.
It’s worse than that, even. The party system and procedural manipulation has permitted the executive to usurp the Commons. The prime-ministerial remit has expanded, so we are past even cabinet government, and the non-elected portion of the executive – the bureaucracy in Whitehall and Brussells, not now the monarch – is far more powerful than it has been since George III’s youth. We have gone beyond the elective dictatorship, to the semi-elective dictatorship.
That Parliament could do anything it likes is Blackstone’s line (one reason that the American Founding Fathers had special hatred for Blackstone).
But Blackstone did not think it would do the various nasty statist things it has done – like Oakeshott in the 20th century he had a quite limited view of what government could do.
But also like Oakeshott he had no real answer to the problem of trying to restrain government.
The smell of Thomas Hobbes (who Oakeshott tried to “explain” or rather explain away what Hobbes allows) is present here.
A government that is sovereign and beyond all prescription.
A doctrine that turns things like the British Bill of Rights of 1689 (which included the right to keep firearms – the word “Protestant” being because it was beleived that James II was plotting against Protestants) into worthless documents.
As for the modern “Human Rights” stuff.
First we should pull out of the Harold Laski and E.H. Carr international one – and out of the European Convention (which is pre E.U. but in the same spirit).
Rights, to be of use, must be clear (with no escape clauses for the powers that be) and be limitations on government power not excuses for government power – as with “anti discrimination” and other “positive rights”.
That Parliament could do anything it likes is Blackstone’s line (one reason that the American Founding Fathers had special hatred for Blackstone).
But Blackstone did not think it would do the various nasty statist things it has done – like Oakeshott in the 20th century he had a quite limited view of what government could do.
But also like Oakeshott he had no real answer to the problem of trying to restrain government.
The smell of Thomas Hobbes (who Oakeshott tried to “explain” or rather explain away what Hobbes allows) is present here.
A government that is sovereign and beyond all prescription.
A doctrine that turns things like the British Bill of Rights of 1689 (which included the right to keep firearms – the word “Protestant” being because it was beleived that James II was plotting against Protestants) into worthless documents.
As for the modern “Human Rights” stuff.
First we should pull out of the Harold Laski and E.H. Carr international one – and out of the European Convention (which is pre E.U. but in the same spirit).
Rights, to be of use, must be clear (with no escape clauses for the powers that be) and be limitations on government power not excuses for government power – as with “anti discrimination” and other “positive rights”.
I should have typed “should do” not “could do”.
Both Blackstone and Oakeshott knew that government’s could do all sorts of nasty things – they just did not think that governments should do all sorts fo nasty things.
Actually Blackstone has an excuse for his position.
The House of Commons in his day had many seats that were either contolled by the King (about 50 I seem to remember) or by Lords or rich indiviudals – not a majority of seats by any means, but enough for a “balanced constitution”.
For the real “balanced constitution” was not King, Lords and Commons (the 1640’s had proved that) it was the influence of the King and Lords WITHIN the House of Commons.
Also House of Commons seats were elected on wildly different systems of voting – from near universal suffrage (at least for men) in places like Preston, to very restricted voting in other places. So there were all sorts of practcal limitations in Parliament – and many independent minded members. People who were not dependent on a party machine to deliver votes.
The tidy minded reformers swept all this away in 1832 – although independen minded members died hard (there were many before the Act of 1867 created a truly mass electorate). And there are even a few decent people in Parliament even today.
Still the above might lead people to think that I am a Tory with deep doubts about democracy, so I had better stop typing on the matter.
As for M. J. Oakeshott.
I hold his writings in high regard. But he never seems to have had a thought about what to do if the “enterprise association” people were winning in their efforts to destroy the “civil association” conceptiom of government.
In short (and I mean no insult by the following) Oakeshott wrote on political philosophy very well – but produced nothing that is useful in politics.
His writing style was NOT up in the clouds (the sort of vague philosophical writing that Burke hated), but Oakeshott’s concerns were up in the clouds.
To be useful in politics he needed to be brought down to Earth.
Although I have never read his journal (indeed I believe that everything after 1970 is lost) so perhaps Oakeshott did have practical concerns.