August 7, 2000
The Wrongs of Human Rights
How a noble concept threatens to cancel itself out.
ANOTHER
DAY, ANOTHER REVOLUTION
You've
heard it all before, the world's been turned upside down, again.
Cherished traditions, pounds and ounces, port and stilton, broken
records. I know I get very excited about things, and so apologies
to all those who've heard this (too many times) before. As always
there's a new variant to this "the rest of the world's interfering
with my life" guff, and this time it's human rights. I'll address
the outrage at even mentioning this sacred phrase later on. In the
last week we've had everything from parking fines to deportation
of international terrorists overturned all in the name of the European
Convention on Human Rights. It's hardly started.
THE
OFFENDING DOCUMENT
The
European Convention of Human Rights is a document with many noble
ideas. People deserve a fair trial, freedom of speech and organisation – in fact, it reads, like a long-winded and twentieth century version
of the Bill of Rights. However, it is more sinister than that, in
that while the Bill of Rights tempers the excesses of democracy,
the Convention replaces democracy. This is not a claim to be made
lightly, making this claim too much or falsely can label you a crank
(well, label you a crank with those who don't think you are already).
Nevertheless, the fact is that the British government has committed
itself to incorporating the Convention into law, which sounds highly
noble, but will have the most farcical and stupid consequences.
HOW'S
THIS FOR STUPID?
The
Convention has in the past month been credited with a large amount
of decisions which overturn British law or procedure. Some are good,
from my point of view, while some are terrible. Most are purely
silly:
- Terrorists
who threaten national security can no longer be sent back to
their country of origin, if they can show that their is a good
chance of torture being applied.
- The
military is no longer allowed to exclude people on the basis
of their sexual behaviour.
- Homosexual
orgies are no longer outlawed. There is a real question as
to whether the government can now ban public acts of indecency.
- Police
can no longer ask drivers whether they were driving their cars
when a speed
camera captures their car registration.
- Historic
buildings can no longer be protected by democratically elected
ministers.
- Unpaid
parking tickets no longer attract an increased penalty – as
this would be a breach of due process.
Now
the point is not that these were all bad decisions in themselves,
but that they were bad decisions for the courts. Remember that these
decisions have been made before the convention has been built
into British law – we have to wait until September for that joy.
Can one pretend that Democracy is not being bypassed? If you are
going to give Government a large amount of discretion over your
life, then you should have a large amount of discretion over the
government. If we can't decide how approaching half of our income
is spent, or how some of the most fun ways to spend our spare time
are outlawed then at some point or other we will want to have a
say. Democracy is a remarkably efficient way to both let off steam
and to lose gracefully.
NOT
FIT TO JUDGE A CAKE STALL
Of
course, this would not be acceptable even if these judges were masters
of jurisprudence, loftily independent yet aware of the cultural
and political nuances of the countries on which they were pronouncing.
However, it would make it far less humiliating. Every country that
has signed up to this convention can appoint a judge to the European
Court of Human Rights. There are some pillars of the independent
judiciary in those countries, you know like Albania, Romania and
Greece. Every country large and small, including Monaco and Liechtenstein,
can appoint a judge. With the sort of talent that is on offer let's
say that the educational standards vary, somewhat. Not only is their
understanding of the principle of law worse than in most of the
"lesser courts" that defer to them, but it is worse than that of
the legislatures that defer to them. Instead of judges we have bureaucrats,
and poor bureaucrats at that.
HUMAN
RIGHTS CAN BE WRONG
It
is relatively easy to oppose the cake-mould approach to human rights
when it involves cluster
bombs and child starving, but when it comes peacefully and with
the connivance of the democratically elected government it is somewhat
harder. To oppose what was happening in Iraq or Kosovo was to oppose
war, surely a greater threat to human rights than anything it was
aiming to rectify. To oppose the convention seems to oppose human
rights per se. "Don’t you believe in free speech and fair trials?"
is the sort of question that will instantly put you on the defensive.
I do happen to believe in things like natural law (not the party
– more Aquinas or Rand style natural law) and therefore rights in
things like our life, our person and our property. Similarly, I
am not a relativist so none of that rubbish about morality differing
from culture to culture. Nevertheless, strategically the imposition
of rights is a huge blunder. If gay people say "we don’t need to
be accepted, we’ll just go to a load of foreigners with a bad understanding
of law and appeal to their better nature, ducky" would that improve
tolerance? Would gay rights become part of the consensus, as it
is now albeit slowly? If people have to accept rights involuntarily
rather than accept them through debate and persuasion then they
will resent those rights. A man convinced against his will is a
man unconvinced still.
SO
WHAT?
How
does this affect us? The simple fact is that becoming a member of
an international organisation is no longer a question of united
fronts at diplomatic conferences and moving battalions around a
map – it is interfering with the very stuff of democracy. To
take an unconnected example, here in Britain it is now illegal to
sell goods in imperial
measurements. Why? Because the European
Union has judged that Britain needs to sell cheese in kilograms
to help free trade. The very measurements that we use are now at
the mercy of unelected international organisations. If we give them
an inch, they will take a mile; or an acre, gallon or non-metric
tonne.
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