We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

The Human Rights Act as a constitution of liberty [no, really]

(This is the text of a talk I gave at the Adam Smith Institute last week. More than one person has asked me for it, so I make it available here.)

I am here to defend the Human Rights Act. It is not an idealistic defence but a pragmatic defence, rooted in historical context. Should classical liberals support the Human Rights Act against repeal? Do we need it? My answer is yes.

Our reactions to phrases become readily conditioned. And so it has been with “human rights”. Let us remember for a moment that the full title of the agreement that is under siege here is the Convention for the Protection of Human Rights and Fundamental Freedoms. If it were called the Fundamental Freedoms Act would it be as easy to undermine?

Sad to say ‘human rights’ do have a bad name, and they have that bad name for good reasons. Their strongest proponents often do the most harm to their reputation – not because of the legal content of what they say, but of their approach to the law.

This comes in two forms which sometimes overlap: the rarer is soft revolutionism from the far left – human rights as a transitional demand. This approach makes human rights a movement more than a doctrine or legal concept.… a means to control the terms of any political debate.

More common is a not entirely conscious belief that human rights and the Human Rights Act in particular embody the truth, the whole truth and nothing but the truth of how states should treat people. It’s a sort of human-rights fundamentalism, a desire for revealed wisdom in which “but that is contrary to Art 6” is a morally conclusive statement.

It’s bound up with humanism, and instantiates the felt values of the bien pensant left. There’s a parallel here with common US attitudes to their constitution, treated as Holy Writ, though those are found more on the right than the left.

I fear that in particular the venerable National Council for Civil Liberties, now Liberty, has become something like the Church of the Human Rights Act. All its activity (most of it still valuable) is now predicated on the overriding importance and superordinate moral power of the Human Rights Act – taken to be proof that the social assumptions of the liberal left are correct.

There are also those for which the Act was a crowning achievement of Tony Blair, showing how the Labour party in government was committed to the freedom of the people, unlike the brutish Thatcher and Major regimes. These last need not detain us long, though their tribal pique may well spur some Conservative opponents.

The enemies of the Act have a point in their disdain for its claque. But they go rather further than that, and repudiate the law itself. Moreover most reject not just the domestic law (such as it is) but the underlying convention, of which Britain has been part since 1950. The Act for them is merely an enabler for the unwelcome jurisprudence of Strasbourg to get into English law (Scots law not much considered). A British Bill of Rights they say will stop all such civilian nonsense.

What’s wrong with it, do they say?

They say it is foreign.

They say the wrong people have rights.

They say we need a better balance between rights and responsibilities’.

They say it is concerned with trivia – or with too many things – and gets in the way of common sense.

They say it allows ‘activist judges’ to make law.

They say it tramples on the sovereignty of parliament.

Most interestingly for my argument, they say that Britain doesn’t need it because of our own much deeper constitutional freedoms.

I have my own complaints against the Act and the convention that it embodies.

Neither is really strong enough in its protection of the individual from the state. The Act doesn’t do some things one might hope from the point of view of rule of law: it does not clearly override other legislation, let alone strike down incompatible law; it doesn’t make Strasbourg an appeal court within our system or its decisions directly applicable here.

It does, on the other hand, extend the scope of human rights actions way beyond bodies exercising state power to all those dealing with the public  – and thereby hands some new power to the state, allowing human rights to be used as a sword as well as a shield. [GH note: this is perhaps rhetorical overstatement but “any person certain of whose functions are functions of a public nature” in is still broad]

The Convention is too riddled with state get-outs “necessary in a democratic society” – which have given rise to the canting doctrine of proportionality that riddles all the legal discussion of human rights questions. And it fails to mention some critical liberties directly at all (which would matter less if that did not mean the Church of Human Rights has now forgotten them).

It’s fairly feeble.

But it is something. I’d argue that we need to strengthen and clarify the application of the Human Rights Act. What are we to make, as believers in a liberal rule of law, of those who want to dispose of it?

Other commentators have said that Conservative plans (such as they are) are “legally illiterate”. That may be so. But such commentators are inevitably communicant members of the Church, preaching to the choir. To the right, press and public alike that just sounds like technical waffle, covering special interest. Technical problems can be fixed, usually. My differences stem from first principles.

Foreign? So what?

A good thing is a good thing, and a bad one a bad one, wherever it comes from. Hatred of the Eurpean Court of Human Rights does seem to be tied up in some people’s minds with dislike of the EU and a sense of nationalist resentment of international institutions generally. But I say, take institutions on their merits. Nationalism is unprincipled and lights arbitrarily what it calls familiar – and calls ‘foreign’ what it doesn’t like. Actually, Great British institutions, from the royal family to fish and chips, often turn out to have foreign origins when you look closely.

The wrong people have rights?

If that is your objection you have missed the point of rights, which is the defence of the individual in the face of attack. If you can strip someone of defences by declaring they are a wrong’un, then none of us is safe.

A balance of rights and responsibilities?

That is if anything worse. It misunderstands what freedom is: not a privilege to be granted on condition of good behaviour, but something that can only be taken away – if at all – on condition.

Against common sense?

This is a variant of “the wrong people have rights”. It says some have the privilege to prejudge what is important and to subordinate some people’s priorities to others.

Judges making law?

Well I trust the same people will be discarding that Great British gift to the world, the common law system. The extrastatutory decisions of such ‘activist judges as Sir Edward Coke and Lord Mansfield’, had no business interpreting parliament or precedent. Let’s while we are at it chuck out the Appeal Court and House of Lords judgements that found ministers’ or officials’ behaviour unreasonable. “Activist” in this context is just a boo-word. Judges decide the cases brought before them – what else does one expect them to do? If they make decisions you don’t like, then challenge the reasoning and distinguish your case. Otherwise tough.

Trampling on sovereignty? I should bloody well hope so!

The whole point of a constitution, of rule of law, is to constrain absolutism. And absolutism what is meant by sovereignty here – be in no doubt about it. The complaint is that parliament – or the state speaking through parliament – ought to be able to do anything at all, however destructive of individual liberties.  With the greatest respect… no, with no respect at all – I don’t agree. “Absolutism begins at home”, is not a motto any liberal should support.

**

Look for a minute at the context of our (Britain’s and other Western European countries’) drafting and adopting of the convention: the point of doing so. This is something both its acolytes and enemies neglect. It didn’t come from nowhere. It was, as constituting documents usually are, an attempt to define and stabilise an order already won by violent struggle. In the specific case, this was the allied victory in the Second World War, and the aftermath. The contents of the convention are direct reaction to the abuses of the totalitarian states of middle of the 20th century.

Argumentum ad Hitlerum has a poor record, but it is unavoidable here. One can go through every article (I won’t – I leave it as an exercise for the reader) of the convention, and see the shadow of the lawless Nazi regime and its abuses. And further in the background, but still in the picture, Joe Stalin, who was still alive and a dominant figure in the world as it was drafted. The high contracting parties were ostentatiously saying: ‘we’re not fascists, Nazis nor Marxist-Leninists’.

Let’s not resist the cheap shot that that Nazis would have had no truck with the Human Rights Act. They would have hated it not only because it specifically tailored to spite them, but because it represented rootless cosmopolitanism, not Volkisch values; because the asocial should not have rights; because your rights should in any case depend on your contribution to the Fatherland; and because nothing should stand in the way of the supreme Will to Power.

In 1950, Britain may have been less in need of reassurance that it was not a totalitarian state than many of the other signatories. But the most interesting claim of the critics is that because Britain is intrinsically a free country, this is still the case. At best this is romantic nonsense. Even in the ‘50s the British state was bulking up hugely. It was then we saw the beginning of the widespread use of judicial review as a means – from British common law – of restraining the arbitrary official power that before the war Lord Justice Hewart had called “The New Despotism” . “We” supported the ECHR then not merely to rebuke Uncle Joe but because we had seen how fragile liberty was in dozens of civilized European States.

Sixty years later, the interest of states everywhere in the detail of the lives of their citizens has bloated.

Britain is no longer obviously a free country. In which support for liberty on behalf of our fellow citizens and our representatives can be taken for granted. We have reached a state of mind in which “the government should do something” is a first reaction to the most factitious scandal. In which an absolute majority can be found in an opinion poll to be in favour of banning the almost certainly harmless activity of vaping in public places .

And though a liberal is hard put It is not even in the same sense a representative democracy.

And it has accelerated. British state is certainly not the (domestically) limited creature it was in 1950 – it has far more power than it had in 1997. Technology gives the state more information, and with it more conviction of Whitehall’s omniscience. And the machinery of legislation has changed, too. Parliament has less influence. Much legislation passes as “framework legislation” giving powers in very broad terms to be filled in by regulations. More is very broadly drafted, leaving it in the discretion of police and other enforcers who will be prosecuted when many are technically guilty. And all of it is hustled through timetabled legislation. Six guillotines under the decade of the aforementioned Thatcher regime were a scandal to her opponents. Everything since Blair has been guillotined and knifed.

Yet opponents of the fairly feeble Human Rights Act are not proposing to weaken the executive branch, just the law that stands in its way. A ravenous Whitehall beast will have a little less chain, and disproportionately more power, and it is presented as reverting to an earlier constitutional age. This is at best deluded: like suggesting you can book Concorde to New York next Tuesday. At worst the delusion is a perverse rejection of all we know about political institutions. It is a conceit that totalitarian power is fine, because it will be wielded solely by sympathetic thoughtful people like Mr Grayling, who will use it as the public wishes. And the public is always right.

Hayek wrote in The Constitution of Liberty of the development of the understanding of rule of law and the concept of a Rechtsstaat:

In most countries of the European Continent two hundred years of absolute government had, by the middle of the 18th century, destroyed the traditions of liberty…  …the main impetus for a revival came from across the Channel. But as the new movement grew it encountered a situation different from that which existed in America at the time or which had existed in England a hundred years earlier.

The new factor was the powerful centralized administrative machinery which absolutism had built, a body of professional administrators who had become the main rulers of the people. This bureaucracy concerned itself much more with the welfare and needs of the people than the limited government of the Anglo-Saxon world either could or was expected to do.

In the last 100 years Britain has developed an absolutist government. And the fading of the culture of liberty and the growth of institutional power has intensified that. The state has become more absolutist in the nearly 20 years since the Act was passed. We may not want the Human Rights Act. But we do need it. It is not sufficient; the moral certainty of its fans may be irritating; but we do need it.

Tweet about this on TwitterShare on FacebookShare on LinkedInShare on TumblrShare on RedditShare on Google+Share on VKEmail this to someone

37 comments to The Human Rights Act as a constitution of liberty [no, really]

  • Mr Ed

    I read an interview with the architect of the HRA 1998 in the Times, c. 1999. She said that she hoped that ‘Human Rights’ would become a substitute for God.

    All you really need to know about the mindset behind human rights law.

    Apart from those foreign rapists who cannot be deported because of their human rights etc.

    It is just scum worshipping scum.

  • Jeremy

    The trouble with human rights is that they are absolute. When they conflict with each other who makes the decision on which one dominates? For example: The rights of members of a society to be protected from criminal activity, say by expelling a visitor to the country, versus that visitors right to not receive unusual punishment in his own country. Without a Human Rights act then Parliament decides. With a Human Rights Act lawyers and judges decide. Lawyers and judges are not subject to democratic control at elections. If they make decisions which the people disagree with there is no way of overturning the decision or removing the deciders. Such laws create a dictatorship of the bureaucracy and are profoundly anti-democratic. Non-specific motherhood statements should never be turned into laws because they create more problems than they solve.

  • Jaded Voluntaryist

    When you compare the European Convention on Human Rights (enshined in the UK by the aforementioned Act) to the Bill of Rights, the thing that always struck me is just hown conditional the rights outlined are. Every right sounds as though it was written to be gotten around.

    For example:

    Article 8 – Right to respect for private and family life
    1. Everyone has the right to respect for his private and family life, his home and his correspondence.

    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

    That’s a helluva lotta “excepts”. It is this act that the Christian Institute is using to challenge the SNP’s totalitarian “state spy for every child” scheme, and it is the big long list of exceptions that make the SNP think they’ll win.

    The ECHR reads like the Bill of Rights edited by a dictator to include user-friendly loopholes.

  • Hayek also said (in Law, Legislation and Liberty vol 2 Appendix)

    It is evident that all these ‘rights’ [human rights] are based on the interpretation of society as a deliberately made organization by which everybody is employed. They could not be made universal within a system of rules of just conduct based on the conception of individual responsibility, and so require that the whole of society be converted into a single organization, that is, made totalitarian in the fullest sense of the word.

  • JohnW

    Human rights, apart from suggesting that there are other kinds of non-human rights like animal rights and environmental rights [which, in fact, do not exist] constitute an insuperable barrier to any proper understanding of what individual rights are – you cannot have both.

    Human rights and individual rights are mutually exclusive.

    The reason they are incompatible is because they have an irreconcilable philosophical basis – so-called human rights have their origin and justification in the collectivist ideology of Plato, Rousseau, Kant and Comte; individual rights in the philosophy of Aristotle and Locke.

    From its critique of “absolutism” [Western Civilisation is absolutist] to the false dichotomy of Human Rights v. a New Bill of Rights [I oppose both] I am afraid Guy’s article is mistaken both in its analysis and substance and can only lead to error and confusion concerning the nature of individual rights and the nature of government.

  • Jeremy:

    Lawyers and judges are not subject to democratic control at elections

    And thank goodness for that.

    If they make decisions which the people disagree with there is no way of overturning the decision or removing the deciders.

    Who are ‘the people’? You? Me? You want law to be a popularity contest? Because that is what making law more ‘democratic’ actually means. Anyone who is a member of any kind of minority group should be terrified by that prospect.

  • Patrick Crozier

    British state is certainly not the (domestically) limited creature it was in 1950 – it has far more power than it had in 1997

    Sounds awfully like a failure to me.

  • Paul Marks

    Guy Herbert knows that the United Kingdom has its own Bill of Rights – why not enforce that?

    As for the European Convention on Human Rights (which is what the “Human Rights Act” is about) does it include the following (from the American Bill of Rights).

    The First Amendment – freedom of speech (no it does not).

    The Second Amendment – the right and keep bear arms (no it does not.

    I do not believe we need to go on – a “Convention on Human Rights” that does not include the principles of the First or Second Amendments need not detain us.

    As for the American Bill of Rights…..

    The failure to enforce the Fourth Amendment – by the 5 to 4 Supreme Court judgement (upholding “asset seizure laws”) is an outrage, it is classic exercise in an non-existent “Amendment Power” by judges (this time “conservative” judges) who have no rightful power to Amend the Constitution of the United States (by pretending the 4th Amendment does not say what its writers were clear that it did say).

    Also the Tenth Amendment lacks the word “specifically” (there in the draft, but not there in the final text – due to “style” concerns).

    The lack of this one word “specifically” in the Tenth Amendment is perhaps the worst tragedy in American history.

    Remember no Constitutional document is worth a damn of there is the slightest vagueness or doubt in it – judges are SCUM (they will seek any excuse to twist the meaning of a Constitutional document), a Constitutional document must be carefully written (by truly “paranoid” people) in order to be “judge proof”.

  • Paul Marks

    In reality the vague “European Convention on Human Rights” is not only useless – it is actively harmful (for example it has been used to try and give criminals the vote).

    The same can (and should) be said of the United Nations Declaration of Human Rights (written by Harold Laski, E.H. Carr and other such) – it is worse than useless, its “positive” rights are actively harmful.

  • Mr Ed

    Jeremy

    The rights of members of a society to be protected from criminal activity,

    There is, of course, no such ‘human right’. There is no ‘human right’ that acts in defence of property, for example, prohibition of eminent domain or compulsory purchase, indeed such rights are preserved. The provisions on property protection are worthless, and then there is the supposed right to an education, see this from the Human Rights Act 1998:

    Part II
    The First Protocol

    Article 1
    Protection of property

    Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

    The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

    Article 2
    Right to education

    No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

  • bloke in spain

    I’m getting tired of saying this. There’s no such things as rights, human or otherwise. There are only obligations. How many obligations can you pile on the people who end up having to discharge them? And these people are never the legislators, lawyers, judiciary, journalists, pressure groups who promulgate “rights”. They always end up as OUR obligations, not theirs.

  • Kevin B

    Skipping over the fact that Guy Herbert’s characterisation of objections to the Human Rights act is – while not exactly full of straw men – something of a caricature of those objections, it seems to me to miss out two of the more common caveats.

    First there is the difference between positive and negative rights: “The state has graciously decreed that, except where the interests of the state are affected, you have these rights and only these rights” versus “you have the right to do anything you like unless it interferes with other people’s rights (except in these very limited circumstances where the state can impose these responsibilities on you).”

    Second, there is the issue in the HRA of conflicting rights. If, for instance, my rights to a family life, food and shelter mean that you are compelled by the state to work for my benefit then what of your rights.

    Of course the only human rights are whatever those bigger and stronger and nastier than you will deign to grant you so some attempt at codifying things such that the majority can in some way for a short time constrain the bullies is useful, but it still doesn’t mean that you or I or anyone has the right to life, liberty and the pursuit of happiness.

  • John B

    Yet the people of the UK have seen greater erosion of their Rights after the Human Rights Act than before.

    Saying certain proscribed words can lead to arrest and a criminal conviction, burning a poppy likewise, calling a police horse gay, arrest and Court appearance, Habeas Corpus suspended for 42 days, attacks on that foundation stone of British Justice, trial by jury, new rules to make saying things which do not break any law sanctionable… there is a very long list.

    Without the Human Rights Act we could call anyone anything as they would have no selective Statute Right to trump our Common Law Right of freedom of expression.

    Anyone making a ‘libertarian’ argument for the Human Rights Act, isn’t one.

  • Anyone making a ‘libertarian’ argument for the Human Rights Act, isn’t one.

    Well Guy is a libertarian, so you are mistaken. Feel free to disagree with his approach on this score, but Guy and No2ID has done more than most to fight against some of the very worst attempts by the state to abridge liberties over the years.

  • Sam Duncan

    “There is no ‘human right’ that acts in defence of property”

    Therefore the entire concept is worthless.

    “Human rights”, with all their numerous exceptions, caveats, and conflicts, are the Ptolemaic epicycles of the modern world. Anything that requires that many “if”s, “but”s, and “maybe”s is usually wrong in its conception; at best deeply flawed. It starts on entirely the wrong foot, by trying to construct a system of “fundamental” rights while still permitting the violation of property. It’s like building a house without proper foundations.

  • Mr Ed

    Anyone making a ‘libertarian’ argument for the Human Rights Act, isn’t one.

    Well Guy is a libertarian, so you are mistaken.

    A non sequiter.

    As for the straw men in the piece, I’ve seen bigger, but only in Whittlesea.

  • Not a non sequitur, but rather a fact. If the person who was the leading light behind No2ID is not a libertarian, then your definition of libertarian is worthless.

  • Mr Ed

    On that reasoming Perry, would not Guy be able to make a ‘libertarian’ argument for socialism? He might simply be in the territory of making ‘valiant’ arguments, as English judges sometimes put it, for the unarguable.

    The fact that someone is a libertarian does not make that person’s arguments for or against X libertarian.

  • RRS

    Coming from the U S, this may not be well received:

    It was, as constituting documents usually are, an attempt to define and stabilise an order already won by violent struggle.

    That is “Legislation,” which is a form of Rules of Policy – Not Law.

    Rules of Policy describe, define, and delineate a desired
    social order and the relationships necessary to it.

    Law describes and defines, but does not necessarily delineate the actual nature of existing social order and the relationships extant within it.

    The efforts of the source “Convention” to delineate a “universal” system of relationships for social orders (whether or not to replace “absolutism” with “universality”) are merely political substitutes for similar attempts through violence as witnessed on the continent of Europe in the early 19th and mid 20th centuries. But, though the means may differ, the objectives of those seeking universality, and the effects of those objectives on individual liberties remain consistent.

    While the public motivations may have been more ecumenical than universalistic, the subordination of English Common Law (as well as English statute law) to a superior (universalist) determination, by partial adoptions of the “Convention,” has been a departure. There has been no evidence that those adoptions have been necessary to the continued preservation of freedoms or rights in England and they certainly have not proven sufficient to generate their acceptance in other societies.

    So England has legislation (HRA) which is neither necessary nor sufficient to its social order – at least as seen from this shore.

    Views on the beachhead may differ.

  • Richard Thomas

    JV, quite so. The ECHR is clearly a joke to anyone who bothers to read even a few clauses in. It would probably be better not to have it at all as it may be used as a veil by those who would wish to violate *true* human rights which are inherent and not granted by any document.

  • Mr Ed

    One particularly repulsive aspect of the Human Rights Act 1998 is its ‘Henry VIII clause*’, Section 10, which allows Acts of Parliament to be amended by statutory instrument (i.e. a decree from a government Minister) if a Court so empowered has declared an Act of Parliament incompatible with the Human Rights Act. Such declarations are not retrospective’ one small mercy.

    * This is the actual Parliamentary jargon for such a clause, named after the old, fat, murderous, coin-clipping bastard himself.

  • The fact that someone is a libertarian does not make that person’s arguments for or against X libertarian.

    Which is why if you are going to reply to a remark that was not addressed to you, you need to actually read it rather more carefully. The claim was not that the arguments for or against X was not libertarian, but that Guy Herbert was not libertarian, which is a rather different contention when talking about one of the most respected civil rights activists in Britain.

  • Mr Ed

    Sorry Perry, misread. My apologies, must stop skimming on phone.

  • Johnathan Pearce

    I think we need to go back and be crystal clear on what the term “rights” actually means. In the classical liberal, “negative” definition, it is about “leaving me alone” and “leaving my stuff alone”. That’s it. Such rights are compossible: my right to live my life unmolested does not place any demands on anyone else that they do anything, such as pay a tax, etc. However, so many “rights” are not like this: they are claims, such as the claim to the “right” to have healthcare, which in practice means persons must have an obligation to be doctors or hospital staff. The “right” to have a house means someone must be forced to build it, etc.

    So much of modern human rights talk now blurs this vital distinction.

    Of course, it may be there are specific aspects of the HRA that are positive from a libertarian point of view. Better to have some protection than none at all. It is also sensible not to get too misty-eyed about some “ancient English liberties”, as some are wont to do. But as Paul Marks says, a constitution, to be effective, must be water-tight, and drafted with the utmost care and clarity.

    Tara Smith’s book on rights is a great place to start.

  • guy herbert

    Though sometimes vaguely covered and subject to far too much exception (“in the interest of morals, public order or national security in a democratic society” …etc) the rights in the HRA are precisely the sort of right Jonathan refers to: classical liberal negative rights. Even the Rirst Protocol ‘right to education’ is not really a “gimme” right: it prevents people being arbitrarily barred from education (as ever with the Nazi example in mind).

  • Mr Ed

    The fundamental questions are whether the Human Rights Act 1998 ‘HRA’ (or some other form of incorporating the Convention) are bulwarks for liberty, or bog-jamming turds in the toilet of liberty, preventing the flushing away of tyrannical laws.

    The reason why the HRA was introduced was surely to move towards fulfilment of the Soft Left dream of destroying the Common Law. That the Common Law has been deficient in the protection of liberty is evident from the history of England since c. 1870 as the State expanded its grip. There is no Grundgesetz (Basic Law) in the UK such as was imposed in West Germany after WW2, and there has been no external shock, such as conquest, to the UK political system to allow such a thing to happen.

    The HRA is a imperfect (i.e. not permanent) form of ‘Basic Law’ but one that has given the Left licence to whittle away legal principles that they dislike. I submit that was the intention all along. If the UK were to have a Basic Law, it need not have the Henry VIII provisions enabling Acts of Parliament to be overwritten by ministerial decree like the Human Rights Act, doing violence to the rule of law in the name of legal protection, and it could instead of having the HRA have a ‘Bill of Fundamental Rights’ enshrined in the same way as the HRA (which can, unlike the German Basic Law, be repealed in a morning.).

  • Guy,

    Really?

    Article 26 * (1) Everyone has the right to education [ie, someone must be forced to teach other people]. Education shall be free, [ie, someone must be forced to pay for it] at least in the elementary and fundamental stages. Elementary education shall be compulsory. [A “right” to be compelled, you say? Very Rousseau!] Technical and professional education shall be made generally available and higher [someone must be forced to provide technical and professional education] education shall be equally accessible to all on the basis of merit [ie, someone must be forced to make education accessible to all on the basis of whatever the government considers to be merit].

  • Guy Herbert

    Rocco,

    That’s the UN UNIVERSAL DECLARATION OF HUMAN RIGHTS. Not what I am talking about at all. It is not in the Convention, nor the Human Rights Act.

    The European Union Charter of Rights, which is again an entirely different thing, contains parallel provisions, including the insane idea of a “right to compulsory education”.

  • Guy, right-oh. Sorry about that, man. I just googled “human right to education” or something, and that came up.

    Although, the one you’re on about says “No one shall be denied the right to education”. In other words, someone must be, (or at least can be), compelled to educate someone else. Granted, it’s not as absurd as the UN one, – but it’s no more liberal.

  • Laird

    I’m not familiar enough with the HRA to express an opinion, but I would like to speak to a comment made early in this thread by Jeremy: “The trouble with human rights is that they are absolute. When they conflict with each other who makes the decision on which one dominates?” I would suggest that true rights can never be in conflict. If a conflict does arise it can only be because one of the “rights” being asserted does not actually deserve that description. Check your premises.

  • Gary

    Guy makes some very interesting points in his speech but I somewhat feel that defending the Human Rights Act is flogging a dead horse. Rightly or wrongly, the HRA and the European Convention on Human Rights that it incorporates, is very much a discredited concept amongst many sections of society and there are clearly real problems with it (in addition to the imagined ones and the situations where it is just a scapegoat for Politicians).

    Although the ECHR could perhaps be fixed by reform, getting agreement on revision amongst all the signatories would be a challenge and therefore my suggestion is that it would be much better to focus on developing a UK Bill of Rights to replace or co-exist with ECHR. By doing so we could address the shortcomings of the HRA/ECHR. For example a BOR could be “interpretation locked” so that its scope could not be extended in the way the European Court of Human Rights has morphed the ECHR from a piece of legislation to deal with Nazi’s, to something that now deals with issues such as votes for prisoners, which are clearly decisions that should rest with society and not a court.

  • Rich Rostrom

    Rocco (Strict Liberalism) @ November 3, 2014 at 7:45 pm: Although, the one you’re on about says “No one shall be denied the right to education”. In other words, someone must be, (or at least can be), compelled to educate someone else.

    It could be interpreted that way (and probably will, in this era). But a more natural interpretation is that no person may be prevented from obtaining education. In other words, receiving education, like life, liberty of movement, speech, or possession of property, is a natural right, and may not be obstructed.

    No one has to give it to you, but no one can say you can’t have it. This is not a meaningless noise, in an era of Boko Haram and the Taliban; and it was not all that long ago that teaching blacks to read and write was a crime in parts of the U.S.

  • Rich, but that’s a completely unnatural interpretation. If I have a right, someone else must have an obligation. If the state says I have an undeniable right to education, someone else has an undeniable obligation to provide me with one, whether they like it or not.

  • Rich Rostrom

    Rocco (Strict Liberalism)@ November 4, 2014 at 10:22 am: If I have a right, someone else must have an obligation. If the state says I have an undeniable right to education, someone else has an undeniable obligation to provide me with one…

    If you have a right to firearms, is someone else obliged to provide you a .45? If you have a right to leave the country, does someone else have to buy you a plane ticket? If you have a right to practice your religion, does someone else have to build you a church?

  • 1. Yes.

    2. Yes.

    3. Yes.

    If you think these answers are wrong, you are confusing rights with liberties.

  • […] Human Rights Act as a constitution of liberty” at the Adam Smith Institute, and as “The Human Rights Act as a constitution of liberty [no, really]” at Samizdata). His point is not that the Human Rights Act is a constitution of liberty, but […]