Sunday, March 22, 2009

Human Rights are dangerous

Last night, your humble Devil was conversing in the pub with young Master Nosemonkey about the value of the EU (what else?). Nosemonkey's contention is that the EU is a good thing because our government is utterly corrupt and the EU can, at least, over-ride its worst depredations of our "human rights" (that is the phrase that he used, and it's important—as you will shortly see).

So, Nosemonkey sees the EU as a check upon the power of our own government. The trouble is, as I pointed out, what is the check on the power of the equally corrupt EU? "Quis custodiet ipsos custodes?", if you like. The answer is, of course, that there is none.

The other objection that I raised was that I had no wish to subsume our Common Law—under which, to define it very simplistically, everything is legal unless specifically proscribed—to the European Roman Law (under which, roughly speaking, everything is illegal unless specifically prescribed). Young Master Nosemonkey's reply once more contained the phrase "human rights".

The fact is that I partially agree with him: our governments are corrupt (which is why, of course, I favour as small a government as possible). However, I believe that the concept of "human rights" is actually a symbol of that corruption, not a brake upon it.

And this excellent post by Bishop Hill, using the current offensive against Home Education, illustrates just why that is the case.
I've been wondering about the distinction between human rights and liberties for some time now and in recent weeks have come to the conclusion that a human right essentially defines an entitlement and therefore a duty on government (and perhaps on others), while a liberty defines a restriction on government (and perhaps on others). I've also concluded that human rights are potentially disastrous.

Here's an example of why.

Lanna's a home educator, and as I've commented previously, there is an ongoing campaign against HE by the government. They have instituted a review of the whole area - the fourth in three years IIRC - and this appears to have been preordained to conclude that there is a need for home inpections by state-approved monitors. Once in place, this will no doubt lead in time to the outlawing of HE. By way of a softening-up exercise, the government has arranged for its client charity, the NSPCC, to make vague insinuations of child abuse in the direction of home educators, which Lanna reckons is a fairly obvious attempt to stigmatise the whole community before regulating and legislating against them. It certainly looks very much like the similar treatment dished out to smokers and foxhunters in the past and so I think she may well be right.

So what has this got to do with human rights? Well, from the HE perspective, how come then the state can demand entry to your home? How come they can force your children to talk to them? How come they can demand that you not be present? Haven't you got a right to privacy? The right to a family life? You would hope, wouldn't you that your human rights would protect you against this sort of thing. But you'd be wrong. The government will argue that the mere possibility of the loss of the child's rights justifies the loss of parental rights to privacy.

And this is the problem with human rights. By creating entitlements, but no understanding of how to balance different people's entitlements off against each other, they create confusion and sow discord and eventually leave the field of debate entirely empty, ready for government to legislate as they wish.

In this case the government has decided that the parent's rights are secondary. (This rather conveniently coincides with their own prejudices and the needs of their financial backers in the trades unions and the educational establishment, who of course want to stop state schools from haemorraging pupils.) But it is clear that they could just as easily have referred to the right to privacy of the parents and decided something completely different. The same set of human rights can give entirely different outcomes depending on who happens to be in power at the time and the whims of whoever is funding them.

Human rights give governments the power to do what they want.

It is this balancing—or, rather, lack of it—that many of us have been railing about for years. Unlike Nosemonkey, I view NuLabour's signing of the Human Rights Act as a menace, not a virtue. Quite apart from the example given above, and quite apart from my personal sense of revulsion that we would need to enshrine in law such fundamental things in order to protect us from our government, there is the practical aspect of looking at the past record of those who signed this act—the NuLabour government.

No peacetime government has ever trampled all over our liberties as much as this government: not one. Our Parliament's power sidelined and debased, and we are constantly spied upon, logged in and out of the country, tagged, locked up for weeks without trial, and generally degraded in hundreds of thousands of smaller ways. Does it seem credible that such a government would sign up to an Act that would constrain their actions and make the citizens freer? It does not.

And so, did the Human Rights Act stop any of these abuses? With the possible exception of one example—the DNA retention of innocent people (and the Act still does not guarantee that the police will destroy those records and, since it is contrary to sate policy, the government has no motive to enforce it)—the answer is a resounding "no".

The Regulation of Investigatory Powers Act (RIPA) was meant to put a brake on the abuse of technologies by various government bodies—instead, it has simply codified the usage of these powers and, as we know from the constant stories, the abuse continues. The original intention of the Act has been subverted and perverted and used for the state's own purposes: instead of protecting the citizens of this country, for which purpose it has proved utterly useless, it has merely given the state sanction to spy on us for its own purposes.

The Human Rights Act is exactly the same: it is utterly useless for protecting our freedoms, and instead gives the state legal and, by our rulers' lights, moral sanction to invade our homes and our privacy.

What we used to have was liberties: and how might they work in our Home Education example?
So how would it work with a liberties-based approach? The first thing to notice is that a liberty doesn't say anything about any individual's entitlements. But by defining what government may not do, the definition of a liberty implies how the rights of the individuals are to be balanced, and moreover, it implies them in a way that makes the outcome completely clear: there is only one possible conclusion that can be drawn.

For our HE example, the US Fourth Amendment (this is clearer for explaining the principles) simply says that the government may not enter the home without reasonable suspicion and a warrant. While this doesn't actually seem to address the question at hand—of how to balance the rights/needs/entitlements of parent and child, these things all flow naturally from the elucidation of the liberty. The rights of the child do receive appropriate protection ("if there's reasonable suspicion, we'll come and check things out") as do those of the parents ("we'll leave you alone unless there's reasonable suspicion").

Liberty works. It has worked for hundreds of years when it has been given the chance. Human rights don't. They never have.

And that is why the Human Rights Act is not—and has never been—welcomed by those of us who believe in freedom. That is why those of us who believe in liberty do not chalk it up as a point in NuLabour's favour. And that is why the EU's Roman-style Law is absolutely abhorred by those of us who wish to be free.

Collusion between our government and the EU has removed our fundamental liberty and replaced it with an ersatz concept of "rights" which, far from freeing us further, has instead given them sanction to snoop and pry and interfere in our lives like never before.

And, frankly, it is strange to hear an intelligent man like Nosemonkey—a man who rightly railed against the disgustingly illiberal measures aimed at Muslims on the grounds that being able to walk down the street without fear of being blown up is the most fundamental human right, trumping all others, as the government put it—embracing that same concept as a positive thing. It is strange to see such a man hailing these "rights"—that allow the state ever more licence to enslave and imprison us—as the saviour of our freedoms.

In short, I think that Nosemonkey is wrong and Bishop Hill is correct.

10 comments:

Katabasis said...

That's a very interesting argument DK.

This is the kind of sentiment that perhaps needs to be more clearly expressed by Libertarians when expressing objections to Human Rights legislation. There's also the danger of baby/bathwater throwing - Human Rights *do* sometimes protect people, though as you and BH convincingly argue, it is quite easy for governments to trade rights off against one another. I confess this hadn't occurred to me before so thanks for bringing it up.

One other thing: "No peacetime government has ever trampled all over our liberties as much as this government: not one. " - Wait, this is a wartime government.

Tim Carpenter said...

Bishop Hill: I've been wondering about the distinction between human rights and liberties for some time now and in recent weeks have come to the conclusion that a human right essentially defines an entitlement and therefore a duty on government (and perhaps on others), while a liberty defines a restriction on government (and perhaps on others). I've also concluded that human rights are potentially disastrous.


I pretty much agree with the explanation of rights, for this is my long-held view, but on freedoms, I see them more as a duty being upon the individual to not impinge upon the equal or superior freedoms of others in exercising their own. This encompasses those in the State who want to propose "legislation", so through this the limitation of it is humanised, made personally accountable and reinforced.

The HRA is a means to make people beholden to the State, as opposed to having personal sovereignty.

Budgie said...

A beautiful analysis DK, well done.

In the EU (Roman) system all our 'rights' derive from (are 'given' to us by) the state.

In the English (Common Law) system the individual has liberty as a precondition. The state's power is only on temporary loan from the individual.

Statists should understand "Don't send for whom the bell tolls", it's none of your damn business.

Vindico said...

Whoop Whoop! Great article. I've been saying exactly that for some time now.
Liberties are not the same as rights, and Bishop Hill nails it squarely in his analysis.

Now is it really too much to ask of our legislators to undertstand it? And more importantly, how come seemingly intelligent people, like Nosemonkey, continue to believe Human Rights are a good thing? Are we crafting our argument wrongly, or is there some aspect more profound that we are missing?

Nosemonkey said...

I can see I'll have to do a more coherent explanation at some point. I was, after all, rather drunk last night... (I'm sure I did a post on this years ago, but can't seem to find it.)

One thing, though - I'm not a particular fan of the Human Rights Act, as I don't see that there was (or, rather, that there should have been) any need for it. The same goes for the EU's Charter of Fundamental Rights, for that matter. The UK was, after all, a founding signatory of the UN's Universal Declaration of Human Rights - and every EU member state is a signatory of the same document, as well as its 1950 offshoot the European Convention on Human Rights.

Those two documents happily covered the basics. The Human Rights Act and EU's Charter of Fundamental Rights added additional layers that are certainly open to dispute. When I say human rights, I mean the basics - fair trials, freedom from torture and arbitrary arrest and the like. With our current government having opted out of the Charter of Fundamental Rights and having been both trying to lock people up without trial for months on end and complicit in extraordinary rendition to countries that practice torture, any additional checks on their ability to piss us around is most welcome. But nothing is ever perfect.

Anyway, booze was entertaining - we should do it more often.

Trooper Thompson said...

You only have to try and read the HRA to realise it's a piece of trash - virtually incomprehensible, they might as well have written it in Norman French. No wonder lawyers love it.

Devil's Kitchen said...

NM,

You were drunk but coherent! I'll admit, I merely used our conversation as a springboard for a post that I'd been considering for a while: when I read the Bish's post today, it seemed like too good an opportunity to pass up...

But yes, we should definitely do drinks more often -- perhaps get Master Band along too, since he was saying much the same thing last night...

DK

Paul Lockett said...

Nosemonkey, with regard to your feeling that there was no need for the HRA as the UK was already a signatory to the ECHR, the HRA is virtually a verbatim introduction of ECHR into UK law, so it didn't really create any new rights or freedoms in the UK. As ECHR article 13 says that:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority not withstanding that the violation has been committed by persons acting in an official capacity,"

it is arguably the case that, by not previously reflecting the ECHR in domestic law, the UK was in violation of article 13. All that the HRA has done has created the scope for challenge in the UK courts, when in the past, cases had to be taken straight to Strasbourg

It take a slightly different view of the HRA. With the exception of some dodgy interpretation of the extent of the right to privacy spelt out in article 8, I think most of the rights in the HRA are actually liberties, as they place negative obligations on the state. The only clearly positive obligations it places on the state are the ones surrounding the right to a fair trial.

The major problem I have with the HRA is that it provides the state with too many opportunities to ignore the obligations it creates. As a statement of intent, it's reasonable, but as a constitutional document, it's far too weak.

charlie said...

How long until they are lining us up and shooting us? Apparently civil unrest will be a no-no, but what exactly is civil unrest? If I haven't slept but am still friendly, would that be civil unrest?

wv: ching, multiplied it's the sound of Brussels. And Strasbourg.

Chalcedon said...

Having read all 3 articles re the NSPCC via the good Bishop's blog I was very concerned. Especially about the use of media bandwagons about spurious satanic abuse being used to fundraise. Also they seem to have an agenda to scare children and parents about dangers lurking round every coner. There are probably no more paedophiles than 50 years ago, just more publicity and more detection thereof via the internet trail. Talking of which, what happened to operation Ore? Too many big wigs caught up in it? Too many establishment paedophiles identified? Anyone in government perhaps? With a sword of damocles held over them and with Nigel Griffiths being made an example of. I wouldn't be surprised.