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Rights and responsibilities: fisking David Pannick

I can’t quite believe the extent of my disagreement with David Pannick’s article in today’s Times, the title of which suggests it may be about immigration, but which is actually about the government’s planned “British bill of rights and responsibilities”. Perhaps it’s not simply a cliché to say that I couldn’t disagree with him more. It’s looks as though I’m making a habit of it. But the extent of my disagreement this time makes this post inevitably into a fisk.

Pannick argues that we need such a bill, firstly because it would have a “symbolic and educative function”. Well, those seem to me very bad reasons to have a law – and its pretty clear from what he says later that is is indeed a law that Pannick has in mind and not merely an airy declaration. If symbolism (rather than substantive change) is needed, why isn’t the existing Human Rights Act good enough?

Pannick implies that a fuller public debate about human rights values is needed – more than we got in 1998. But what does he thinks this “debate” would achieve? Widespread agreement? Surely that’s hopelessly optimistic. Agreement, at least by a majority of people, on what our legislation should provide in terms of human rights protection? If that’s his aim, then I think Pannick had better get used to the fact that the public probably don’t want the strong form of human rights incorporation he goes on to advocate in the rest of the article. I think there is actually plentiful public debate on human rights, in pubs and clubs, in Parliament and in the media – but lawyers aren’t really contributing to it because they’re convinced it’s at too low and knockabout a level. Pannick says

There’s a shameful lack of understanding of the content of the Human Rights Act by politicians and the public.

Well, I think that’s a fair statement, but I’m not sure the HRA is really different in that regard from, say, the European Union, or the “Children’s Act” as it’s so often called, or discrimination legislation or the Abortion Act. As in all these areas, politicians and the public do try to get a broad understanding of what’s going on. But some of the most contentious issues – is the Reform Treaty the same as the Constitution; will age discrimination laws mean firms can’t force people to retire? – are difficult to understand without the kind of training many lawyers have and which it’s always going to be Fake Oakleys unreasonable to expect people to undergo. But they’re going to debate the result they see coming from the legislation, vigorously, and I don’t think it’s enough for lawyers (as I think Pannick is doing here) to refuse to count that as a proper debate on the grounds of it being insufficiently enthusiastic about human rights.

Pannick wants a bill of rights to

set out the core values of our society to be taught in schools and to be accepted by anyone wishing to move here

but this worries me. Why should kids be taught about legislation? Maybe if you have a sort of nationally founding text like the US Constitution, teaching kids about is fair enough – it’s part of history. By all means let’s teach kids about Magna Carta, 1688, the Reform Act and the Suffragettes. But teaching kids about Gordon Brown’s latest marvellous bill seems to me far too much like political education. And why should immigrants accept these values? If what Pannick had in mind were merely values like “fair play”, “democracy”, “a free press”, “equality for women” and so on, I’d agree with him. But it’s clear from the article as whole that what he really means is the content of the existing HRA, plus. Why should an immigrant have to accept, say, that there should be a right to protection of property (as guaranteed by the ECHR and the HRA)? Isn’t it acceptable for someone to be a sincere communist, believing that all property is theft? It seems to me that someone believing that and working peacefully and democratically for that principle to be applied, is a perfectly acceptable immigrant fully accepting core British values.

Pannick says the bill would

provide a framework for the resolution of controversial issues of public policy

which is the kind of thing Francesca Klug argues in her book Values for a Godless Age. But I don’t think it would provide such a “framework”, any more than the Human Rights Act does already. How could it? If the public and politicians in effect replace discussion of practical policies (what Popper called “piecemeal social engineering” – getting him in again) with discussion of human rights principles what we end up with is the confused impulse that what care home residents urgently need is the protection of human rights laws – without direct consideration of how those Cheap Oakley principles would bite and what behaviour they’d require of care homes – and neglect of the question of whether the regulatory regime for such homes is good enough and effectively enough policed.

It’s what I call “human rightsism”: a belief that all policy questions should be cast in human rights terms, so that human rights law extends to everything. It borders on seeing human rights as a kind of secular religion (the title of Francesca Klug’s book is a giveaway I think) – and I’m against it. It can also lead to what I call a “ratcheting down” of actual human rights protection if – seeing everything through the human rights lens – politicians and others replace all discussion of , say, whether a proposed mechanism such as trial by judge alone is procedurally fair, with a discussion of whether it satisfies the minimum guarantee of article 6. Anyway, how does thinking about abortion, say, in terms of rights – the right to life of the foetus versus the right to biological self-determination for women – help decide what the content of abortion law should be? How does thinking about rights help decide what to do about binge-drinking? I think human rightsism is a way of thinking developed by some liberals under Thatcherism, when they lost faith in political action and decided legal methods worked better to further political ends. But you can’t, ultimately, replace politics with legal principle.

I’ve not finished yet, I’m afraid. Pannick argues that the bill

would emphasise that human rights law involves a balance between rights and responsibilities

which it undoubtedly does. But I’m impatient with lawyers and politicians reassuringly telling us that human rights law embodies the idea that rights and responsibilities must be balanced – that they require a balancing procedure – while avoiding the hard, nasty, political truth that what actually matters is where, substantively, the balance is struck in the end. It’s this avoidance that enables David Pannick to say – much as the government does – that

Misleading, and sometimes mischievous, newspaper reports have wrongly led people to believe that the Human Rights Act confers entitlements free from obligations to respect the right of others and to contribute to the welfare of society.

But I’m afraid it is neither misleading nor mischievous to say that the Chahal case prevents the UK from deporting people who are a risk to our national security, so long as there’s a substantial risk they might be tortured at home. It’s true. And it shows that under the existing content of the Human Rights Act, respect for other’s rights and contributing to other’s welfare is not, and cannot be, a condition Cheap Replica oakleys of the enjoyment of Convention rights or of a right to remain in this country. So much for Pannick’s contention that

A British bill would identify what the community is entitled to expect of all those who live here.

It wouldn’t, unless it makes changes to the Human Rights Act to deal with problems like that caused by Chahal or raised (however misdirectedly, legally speaking) by the Learco Chindamo case. These dirty, nasty, demotically Daily Mailish arguments are in fact the public debate Pannick says he wants, precisely about “what the community is entitled to expect of all those who live here”.

But what David Pannick actually wants is an extension of individual rights in the HRA – not their further balancing or tempering by responsibility. As well as that, he wants Parliament’s freedom to legislate contrary to Convention rights to be curtailed.

Pannick ends by saying that

One of [the values that bind us together] is that political change is the product of free debate of information and ideas led by democratically elected politicians.

I wholeheartedly agree with that sentiment – but everything else Pannick has argued for runs counter to that principle by suggesting the entrenchment of fixed standards now, and limiting what public and paliamentary debate can achieve.

I support the Human Rights Act, and the Convention: the public should not (as I believe the government is now trying to do) be conned with smoke, bills and talk of content-free “balance” and “responsibility” into believing that the current content of the Human Rights Act is uncontroversial apple pie, and any little worries are myth and nonsense.

The real challenge is to face up to the Act’s real requirements and either justify them, or set about changing them at national or international level.

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  1. uncontroversial apple pie

    As a consequence of the climate which may be generated by the current and perhaps ongoing credit crunch, I wondered whether or not, i) fiat currency, and; ii) the freedom to contract wrt paying wages directly into bank accounts would be affected. Both of these situations could be seen as depriving someone of the “peaceful enjoyment of his possessions.” (art 1 of protocol 1).

    However, reading further, one sees, “… 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.”

    In other words State theft under the pretence of the rule of law. Utter bollocks. The HR Act 1998, printed out, is used toilet paper.

  2. A bit harsh,

    Perhaps, but here’s where I’m coming from.

    Chatting with someone the other day about the credit crunch and what it may mean for the man on the street, the subject of paying wages came up. Particularly, paying wages directly into a bank account rather than being allowed to demand cash in hand. As HoL most probably knows, “… If I pay money into my bank account, either by paying cash or a cheque, the money at once becomes the money of the banker. The relationship between banker and customer and is that of debtor and creditor. … I have a chose in action, …” according to Lord Goddard CJ in R v Davenport [1954].

    So, why can’t we demand cash for our labours (whether by hand or brain) instead of being palmed off with a chose in action (btw, the chose in action was held with Norther Rock)?

    The reason is because of freedom to contract. Employers and (prospective) employees are free to negotiate the terms of how wages are paid. Even though the relationship over this matter is asymmetrical. But it wasn’t always like this so why now?

    Well, it began in the 80s after the passing of the Wages Act 1986 which had the effect of repealing the Truck Acts 1831 and 1960. So, what were the Truck Acts?

    Before 1831 employers and prospective employees had freedom of contract when negotiating how wages were to be paid; due to the asymmetry of the relationship, employers negotiated to pay the employees either in kind or with vouchers. The vouchers only being redeemable at the company shop this meant that the employees were being cheated out of the value of their labour. Consequently, an Act was passed where ‘artisans’ had to be paid their wages in money.

    Now, does anyone imagine that the HR Act 1998 has as much teeth as the Truck Acts when it comes to protecting a persons possessions?

    As to fiat currency, this is simply a voucher scheme. Money has been replaced by tokens, instead of some boorish greedy mill owner getting more than the market value of someones labour, the State gets it.

    Still a bit harsh?

  3. After hearing both Dominic Grieve and Michael Wills talk at the Justice lecture last night I am now left wondering “what is the point?”. Both parties want to protect parliamentary sovereignty and not increase judicial power re: striking down legislation. Both parties accept that the Bill of Rights could only increase the rights contained in the HRA/ECHR. And both parties wanted the Bill entrenched somehow. Keeping all this in mind, neither explained why it was necessary to introduce a Bill of Rights when in reality there isn’t going to be much difference between that and what is contained in the HRA/ECHR.

  4. It makes no sense, does it, JB? I can’t understand it either, and to be honest I imagine civil servants are wondering at the moment just what on earth they can possibly put in this bill, whenever they come round to having to do something.

    The more I think about it, the more I conclude that this whole policy was conceived as part of a plan aiming at an election in spring 2008 – a time-line that’s now had to be abandoned of course through a botched dither about whether to bring it forward. It was possibly sustainable politically to suggest for six months or so that you were planning to reform human rights law in a way that would magically unite the Daily Mail, Liberty, Labour activists and men and women in pubs. They could have buried it, if they’d won, in 2009-10.

    But now Michael Wills may actually have to come up with something before the next election. Best outcome for Gordon? Possibly lots of “citizens’ juries” saying there should be no change.