The Human Rights Act will always come under attack. After all, the whole point of the legislation is to place the rights of the individual before the rights of the community. Certain fundamentals such as the right not to be subject to inhuman or degrading treatment are inviolable. However most rights such as the right to private and family life, can only be limited if the government can establish that they pose a significant enough risk to society, or the rights of other individuals.
The burden of proof is placed firmly on the government and even if it the government establishes that it can limit a right, the response must always be proportional. One of the effects of this is that judicial decisions against the government often seem profoundly unjust (to the majority), with the afghan hijackers case being just one example.
What this comes down to is essentially a debate between utilitarian and liberal philosophies of government. The utilitarian position is a majoritarian one – it argues that the role of the government should be to maximise the greatest good for the greatest number, even if it means that some people are made significantly worse off.
The problem with this is that it systematically ignores the needs of minorities. Decisions are taken by the majority and the preferences of the majority always come first. Going back to the hijackers case, despite the fact that they had committed a crime, their right to a fair trial was denied by a government over-eager to deport them and there was also evidence that they would be subject to inhuman treatment if they were returned to Afghanistan.
This does not mean that they had to be released, simply that their cases should have been examined more closely. As indicated, the Human Rights Act does not give judges a veto and if the government had approached this sensibly, the asylum seekers could have been jailed for the crime of hijacking. After serving their hefty sentences, it is conceivable that conditions in Afghanistan would have improved and they could have been safely deported.
Incidentally there is another twist which makes the Human Rights Act particularly relevant to Pickled Politics. As Sunny has consistently argued, one of the major problems with race relations in this country is the presence of community leaders and experts who end up serving themselves.
Politicians influenced by a utilitarian mindset see responding to such groups as being both democratic, as well as a way of increasing their own support and popularity. To a certain extent such local institutions are necessary for democracies to work and the problem with Asian communities is the disconnect between older and younger generations. However, whatever the system, individual rights can protect the minority (or the under-represented) within the minority.
A perfect example of this would be the Shabina Begum case. On the one hand you had the general public querying her wearing of the jilbab. The Muslim minority reemphasised this by stressing the fact that their ‘community’ had agreed to the school uniform and that Shabina Begum’s position was wrong. Of course an important element of this case was the special nature of maintaining an atmosphere in school which was conducive to learning.
The fact that HT was involved and how the decision could affect other girls who might not want to wear the jilbab was also significant. However it does illustrate the care which needs to be taken when dealing with communities rather than individuals. In this case it just happened to be that the individual was more conservative than the norm, rather than being more liberal than the norm which is usually the case.
This piece is not intended to apply that judges do not make mistakes, they do. It also doesn’t want a strengthening of the current legislation – currently parliament can ignore judicial decisions which query primary legislation, which is an important safeguard in case judges do err. Instead it is an argument for the importance of having a discourse which does not escape a framework of human rights which temper the impulses of majority. With David Cameron saying that he will repeal the act (and he’s a conservative moderate), I’m hoping that Gordon Brown disagrees with Tony Blair on this issue. Unfortunately, I’m not very confident that thatâ€™s the case.
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Filed in: Civil liberties