Why Human Rights Matter


by Shariq
23rd May, 2006 at 9:38 pm    

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 that’s the case.


              Post to del.icio.us


Filed in: Civil liberties






39 Comments below   |  

Reactions: Twitter, blogs
  1. towards God is our journey

    Human rights and the state…

    Reformist Muslim has a post on Why Human Rights Matter at Pickled Politics. In response to the post, a commentator mentioned that human rights (legislation) is our way of resitricting state intereference in our everyday lives. This is a common…




  1. soru — on 23rd May, 2006 at 10:12 pm  

    The problem I see with this argument is that you don’t seem to distinguish between _human rights_ and _human rights law_, a species of confusion rather like trying to eat a menu.

    Of course there is a complicated interaction between individual rights and the general welfare, but that does not mean that a particular mechanism for making decisions in that area is a good, or even adequate, one.

    Can someone provide an example of a case where the Human Rights Act, specifically, led to a solution to a dispute that was more sensible, more comprehensible to all parties involved, than the arrangement that existed before it came into force?

    It seems more common for it to be used to justify some otherwise inexplicable legal decision, the judicial equivalent of ‘leaves on the line’ or ‘the wrong kind of snow’.

  2. Katy Newton — on 23rd May, 2006 at 10:38 pm  

    I’m probably going to sound like I’m splitting hairs here, but I’m not: the Human Rights Act really isn’t about putting the rights of the individual above the rights of the community. It protects the basic rights of the people – all the people – from undue interference by the State. All sections of the community should receive equal protection from the State under it; no one section of the community should receive more or less protection than any other.

    That’s an important difference, because one of what you might call the PR problems faced by the HRA is that people perceive it as a mechanism to promote or favour some people – the whingeing undeserving ones – over others – the nice ones who never make a fuss. An example would be the constant whingeing about asylum seekers being given somewhere to live and money to buy food with whilst they are waiting for the outcome of their applications to the Home Office, or prisoners being given television sets, instead of the money going to the NHS or education or whatever the fashionable issue is.

    No-one would actually disapprove of any of the rights protected by the HRA in themselves, possibly excepting the Daily Mail. There is a perception that judges and government officials twist the HRA to hand “our” money to “them”. In fact both criminal justice and immigration rules – the two areas which cause the most hardliner whingeing – have become harsher and harsher since this government came into power and the HRA does little to mitigate that. In fact, legally, the HRA turned out to be a bit of a damp squib. But it has become synonymous in the public mind with the idea of political correctness gone mad.

  3. Katy Newton — on 23rd May, 2006 at 10:39 pm  

    PS I should say that as far as I know asylum seekers don’t in fact get housing and benefits because of the HRA, nor was that why prisoners got television sets. But that’s the type of thing that people tend to pin on the HRA.

  4. Old Pickler — on 23rd May, 2006 at 10:54 pm  

    Can someone provide an example of a case where the Human Rights Act, specifically, led to a solution to a dispute that was more sensible, more comprehensible to all parties involved, than the arrangement that existed before it came into force?

    Very good question. Scrap it.

    Deport the hijackers and tell dozy bint Shabina to get stuffed. (Actually, that’s already happened, but at great expense to the taxpayer.)

    Hijackers have no rights. None whatsoever. That plane was flying to Moscow? Why didn’t they claim assylum there? Because they know the UK is a soft touch, that’s why.

  5. David Jackmanson — on 23rd May, 2006 at 10:56 pm  

    Soru I went to a seminar about human rights on the weekend, and was feeling quite skeptical – we have a campaign at the moment to get a Human Rights Act here in Australia, which I don’t want to join (I can think of more useful outlets for my activism)

    Two of the speakers specialised in protecting the rights of women in prison, and they both thought that a Human Rights act would provide some useful tools to help them in their work. No-one seemed to be under the illusion that an HRA would solve problems or be the end of any battles.

    Regards,

    David J

  6. j0nz — on 23rd May, 2006 at 10:57 pm  

    When the human rights act means that more than 230 terror suspects free to stay in Britain I think questions do need to be asked.

    In this case, the human rights of these terror suspects is being put above the rights of the community.

  7. Sunny — on 23rd May, 2006 at 11:14 pm  

    Deport the hijackers and tell dozy bint Shabina to get stuffed.

    Rubbish. It is perfectly legitimate to question whether deporting people to countries where they are likely to be tortured. Otherwise the UK government becomes culpable in torture.

    The same with Shabina Begum case. It was the right outcome in the end but she had a right to take it to court and contest her rights. It shouldn’t have gone further than the high court, which should have used better judgement, and she should have used more sense (by not associating with HuT for a start), but the point is – this is also her country and she has a right to try and live life her way.

    The problem with people such as yourself Old Pickler is that you use specific events to question a system that may work well 95% of the time. No system will ever be perfect.

  8. John Browne — on 23rd May, 2006 at 11:15 pm  

    Apparently the philosopher Immanuel Kant invented the idea of the “League Of Nations” (UN) and the French Revolution gave the world “Human Rights”.

    It would be a nice idea if UN troops took over all countries that were not democratic and not “nice” to their citizens – to grant citizens “RIGHTS”. Unfortunately I doubt, even if the whole world joined in, we wouldn’t get a big enough army to deal with China, never mind any where else (eg Barking).

    John

  9. Katy Newton — on 23rd May, 2006 at 11:30 pm  

    Bravo Sunny!

    I would like to add that it has always been open to anyone who came to this country to claim asylum on the grounds that they would be hurt or killed if they returned to their country. The Human Rights Act is just another way of mounting an argument that asylum seekers have always been able to make long before it was even thought of.

  10. Jay Singh — on 24th May, 2006 at 12:32 am  

    The thing about not returning asylum seekers/refugess to countries where they might be tortured is part of European treaty obligations anyway. Even if the HRA was not there, this would still apply to the UK.

  11. Ismaeel — on 24th May, 2006 at 8:36 am  

    The reason why and many other Muslims are sceptical about Human Rights Laws is because of the way they are implemented. Let’s take for example the case of Leyla Sahin, a Turkish woman who was not allowed to wear her hijab in higher education in Turkey and went to the European Court to have them back Turkey’s stance in repressing her right to worship, freedom of expression and right to education in favour of the state’s right to extreme secularism.

    http://comparativelawblog.blogspot.com/2005/11/leyla-sahin-v-turkey-echr-grand.html

  12. reformist muslim — on 24th May, 2006 at 10:53 am  

    soru and katy – to clarify, i am talking about the HRA.

    david – your point about it being an extra tool is an important one. i think a focus on individual rights ennables a more complete conversation then is otherwise possible.

    ismaeel – your point about the Sahin case is a good one. Their is also the dichotomy between the European Courts decisions in the Communist Party v Turkey and Refah Partisi v Turkey cases. Both concerned banning of political parties. It was found that Refah Partisi could be banned whereas the Communist Party could not.

    however at least with Sahin, the decision was as much down to the views of the Turkish government and the fact that the ECHR allowed them discretion. having said that, it is unclear if the discretion would be given when dealing with pro-religion cases.

    finally things such as torture and asylum are guaranteed by other treaties. however without the HRA, there is no effective domestic legal recourse.

  13. sonia — on 24th May, 2006 at 11:02 am  

    and what is a community if not a bunch of individuals!

    what a stupid species we humans are.

    sorry about my comment not being ‘subtle’ – i do think humans who rail against the human rights act are a) incredibly thick and b) incredibly lucky they’re not sitting in a torture cell somewhere – because we know sure as hell what their opinion re: any laws protecting their right not to be tortured would be.

    simple.

  14. Stephen — on 24th May, 2006 at 11:17 am  

    Whenever the discussion of HR arises someone always quotes the phrase “tyranny of the majority”. Whenever I think of the Begum case I can’t help thinking of the counterpoint “tyranny of the minority” — where society has to jump through hoops to accomodate difficult individuals.
    There’s a much poorer article on this by a Dworkin on the CIF site btw.

  15. sonia — on 24th May, 2006 at 2:40 pm  

    hmm. i think this focus on the ‘minority’ aspect actually is problematic (not that i disagree what the article says) in that many people understand human rights as precisely that -something invented to protect ‘minorities’ – minorities they don’t belong to. and that’s why they see human rights as not universal – but something only ‘dodgy minorities’ want to protect. Human rights needs to be viewed as something ‘everyone’ should be interested in, not just ‘minorities’.

  16. Jay Singh — on 24th May, 2006 at 2:56 pm  

    Excellent point sonia!

  17. Old Pickler — on 24th May, 2006 at 3:11 pm  

    Shabina the dozy bint had no right to waste taxpayers’ money. She should have done what the school told her or go to another school, preferably in Bangladesh, where she comes from, since Western values are so distressing to her.

  18. Sid — on 24th May, 2006 at 3:49 pm  

    Sonia

    Yeah good point on #15. Similarly multicultarism seems to be viewed as a social construct that only protects the peoples of “ethnic” component of the multicultural composite. No one suggests that multiculturalism benefits the entire society as a whole or that the dominant culture “loses out” in the bargain.

  19. Amir — on 24th May, 2006 at 4:06 pm  

    Reformist Muslim,
    I appreciate the sentiments behind this article, but you get some fundamental things wrong – just plain wrong.

    After all, the whole point of the legislation is to place the rights of the individual before the rights of the community.

    The debate to which you refer has been going on for a very long time – between Hegel, Marx and Nietzsche, Emile Durkheim and Max Weber, and, more recently, between Charles Taylor and John Rawls in political philosophy. It’s about the individual vs. society, the ‘atomized’ individual vs. the ‘embedded’ individual, community rights vs. individual rights. And it’s been a constant tug-and-war battle for centuries. My view on this is quite simple: There is no such thing as an individual or a community! They don’t exist! All we have is an infinite number of relations. [Of course, the English language is not nuanced enough to distinguish between ‘big’ and ‘small’ relations, hence the micro/macro bludgeoning of ‘individuals’ vs. ‘communities’.] The only things that ultimately matter are positive (freedom ‘to’) and negative (freedom ‘from’) liberty.

    greatest good for the greatest number

    Wrong. Greatest good for the ‘existing’ number. Bentham made that error as well.

    The problem with this is that it systematically ignores the needs of minorities.

    Well, that rather depends!! Act consequentialism is different from rule consequentialism, and the latter helps protect the rights of minorities. Not every utilitarian philosopher (Amartya Sen, Peter Singer, RM Hare) is as crude you portray them to be. Under rule consequentialism, a human right can easily be considered a moral rule.

    Amir [Awaiting abuse from fellow contributors… LOL :-) ]

  20. Sunny — on 24th May, 2006 at 4:08 pm  

    Yeah its all good reciting from a philosophy book Amir, but try and make that relevant to real life :)

  21. Amir — on 24th May, 2006 at 4:26 pm  

    Sunny, I actually recited it from the top of my head, so I’ll to simplify it for you:

    (1.) Utilitarianism can take one of two forms:
    Rule and Act consequentialism

    (2) Act = You judge ‘x’ act by its good consequences
    Rule = You judge ‘x’ act by rule ‘z’ and maximise the good consequences of z

    And…

    (3) Individuals do not exist because humanity only exists in relation to the corporeal world. There is no such thing as the ‘atomized’ man or an unfettered ego. People are embedded within social structures (i.e. family, country, religion, local community, school, etc.)

    (4) Communities do not exist because a community is not an autonomous reality. It does not, so to speak, exist ‘sui genersis’ (as Sonia pointed out above). Society is not a living organism – it does not change on its own accord, only in virtue of its individual members.

    All political questions are questions of human freedom (or ‘soft’ determinism if you don’t like the metaphysical ring to that)
    Amir

  22. Amir — on 24th May, 2006 at 4:40 pm  

    I guess, what I’m trying to say is this:

    (I) Rule consequentialism doesn’t always disadvantage minorities.

    (II) The individual/community dualism (or any other Platonic dualism) is useless in trying to explain the fundamentals of human rights. These ‘rights’ are about improving relations (i.e. trying to curb unnecessary coercion) within our societies, which, in turn, maximises human freedom.

  23. Amir — on 24th May, 2006 at 4:43 pm  

    Happy now Sunny? Huh! Huh?

    Go back to reading those shitty Gary Younge articles! :-)

    Heh heh!

  24. Roger — on 24th May, 2006 at 4:46 pm  

    “After all, the whole point of the legislation is to place the rights of the individual before the rights of the community.”
    No. The point of human rights is that everyone in the community has them. The community consists of all the people in it. Yes, there does come a point where change in quantity means change in quality, so there is a difference between community and individual but universal rights are one of the definitions of a human community rather than an ant’s nest. Rights are often contradictory, however, and sometimes we have to restrict some rights to protect others. When we do that we should know that we are doing what is the less bad thing, not a good thing.

    “greatest good for the greatest number”
    Least harm to the least number is a good rule of thumb.

  25. soru — on 24th May, 2006 at 8:45 pm  

    ‘The thing about not returning asylum seekers/refugess to countries where they might be tortured is part of European treaty obligations anyway.’

    The problem with this argument is the word ‘might’.

    If an individual has a 0.1% chance of being tortured if deported, but a 10% chance of killing 100 individuals if left at liberty in this country, I don’t think a purely individual rights approach, implemented within the legal system, is going to be useful in balancing those different probabilities. The process would produce an outcome based entirely on structural issues, like who was in a position to pay money to lawyers when. The hundred people running a 10% chance of death are clearly having their rights violated in some abstract sense. But they don’t know it, so won’t hire a lawyer, meaning the court won’t ever be asked that question.

    This is fundamentally different to a case of extradition of someone on a charge for which they will face torture or the death penalty. That would be a violation of human rights in which the court was directly complicit, which is never acceptable.

  26. Ravi4 — on 24th May, 2006 at 10:43 pm  

    Excellent article by Reformist Muslim.

    Amir – your arguments don’t change the basic point that I think RM is making. That there is a potential (repeat POTENTIAL) tension between the will/rights of the majority, however that’s defined (community, family, society etc), and the will/rights of the minority (individual, family, community etc). This is why democracy – guaranteeing will/rights of majority – needs to be accompanied by the rule of law and human rights – protecting will/rights of the minority.

    Sorry to hark back to Sri Lanka, but SL is a good example of this dilemma. Sri Lanka has been a functioning democracy, with free competing political parties and free press, since 1948. But it has consistently underperformed in terms of the rights of the minority – the area where judiciary, human rights, rule of law should have provided protection to the minority. Hence the mess there now.

    Another point is that the Human Rights Act didn’t actually create new rights. It brings into UK courts rights which were previously already available to all UK citizens, but which before required action at the level of the European Court of Human Rights to enforce (with all the costs and inconvenience involved). I understand that the European Convention on Human Rights was actually largely written by British lawyers, so it is not some dark continental conspiracy at all.

  27. Sunny — on 24th May, 2006 at 11:14 pm  

    or go to another school, preferably in Bangladesh, where she comes from,

    See, when I write my articles about Britishness Old Pickler – I see you as the enemy of our revolution. You are part of the problem.

    Shabina Begum does not come from Bangladesh, she is born and bred British regardless of where her parents come from or what her religious values are. I may not support her case but she is 100% British whether you like it or not. And I will never deny her that right.

  28. Old Pickler — on 24th May, 2006 at 11:57 pm  

    I didn’t realise that she was born here.

    However, nobody is denying her anything. She is taking the piss. That is different.

    I’m so glad she lost. One in the eye for dozy bint sack wearers and their puppet masters.

  29. Old Pickler — on 24th May, 2006 at 11:58 pm  

    And dozy bint sack wearers and the men who beat them into it are not British and never will be, wherever they were born.

  30. Sunny — on 24th May, 2006 at 11:59 pm  

    And dozy bint sack wearers and the men who beat them into it are not British and never will be, wherever they were born.

    That is not for you to decide. That is for us to decide.

  31. Old Pickler — on 25th May, 2006 at 12:09 am  

    Not just you. That is for the British people to decide. It may well be, as in this case, that sacks are rejected, regardless of how acceptable they are in more primitive places.

  32. Sunny — on 25th May, 2006 at 12:11 am  

    If they do not violate the law, then a person’s individual liberty is central. Clearly you’re not into the “liberal democracy” idea as much as you claim.

  33. Old Pickler — on 25th May, 2006 at 12:13 am  

    Individual liberty? In a “culture” such as Islam that stones rape victims? What a joke.

    Dressing women in sacks stems from the same primitive, backward, tribal savagery as stoning rape victims.

    If stupid adult women want to dress like daleks, then, as long as they don’t do it in banks etc, or stop if there is a security risk, then fine.

    But in the 21st century, to shroud a child in a sack is plain cruel. It has no place in civilised society.

  34. Sunny — on 25th May, 2006 at 12:15 am  

    I don’t know quite how to keep repeating this so it seeps through.

    It
    is
    not
    for
    you
    to
    decide.

  35. Old Pickler — on 25th May, 2006 at 12:16 am  

    Well it is, partly. I have a vote. Plenty like me have a vote. Let’s hope the multiculturalists are voted out.

    It was for me, or people like me, to decide in the case of Shabina Begum. And the dozy bint and her puppet masters lost. Good stuff.

  36. Roger — on 25th May, 2006 at 7:39 pm  

    Individual liberty includes the right of people to dress up in silly costumes- except on certain specified occasions when there is good reason to stop them- and to say that other people ought to be made to wear silly costumes too. This is not a matter of what people can vote for or against.
    Individual liberty guarantees the right to want to restrict other peoples’ individual liberty. The problem, of course, comes when people who want to restrict other peoples’ individual liberty might be in a position to do so.

  37. Arif — on 25th May, 2006 at 7:46 pm  

    Human rights matter to me because I do not want myself or others to be treated callously. And so I think that my moral duty is to treat other people as I wish to be treated.

    The consequences for political theory be similar to the Rawlsian original position that Reformist Muslim has discussed elsewhere, of thinking about the kind of society you would like to live in without knowing where you might be in relation to others (your beliefs, your sex, your wealth etc).

    From such a standpoint, human rights justify themselves to me because I believe I would want to live in a society which respects them.

    I also want to live in a society which can stop angry people blowing me up. And so maybe Rawls doesn’t help after all if there genuinely is a tension between human rights and community rights.

    But I have not been persuaded that there is such a tension, because the people who are politicaly angry tend to base it on grievances which can easily be traced to a continuing abuses of human rights. I think it would be more persuasive if I felt attempts were being made to address genuine grievances before resorting to curtailing human rights which (from the consequentialist perspective) can create ever more grievances in any case.

  38. douglas — on 25th May, 2006 at 11:25 pm  

    Sunny,

    Am I not right in saying that women have blown themselves to bits in Israel? Have they not hidden their bombs beneath so-called religious garb?

    Whilst I appreciate the need to allow all beliefs, idiotic as they may be, I think this religious tolerance might blow up, literally, in our faces.

    I think that is a legitimate worry.

Sorry, the comment form is closed at this time.

Pickled Politics © Copyright 2005 - 2010. All rights reserved. Terms and conditions.
With the help of PHP and Wordpress.