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Martin Sewell: Are " Human Rights" Alien, Culturally Insensitive, and Undemocratic?

Martin Sewell is a Family Lawyer specialising in Child Protection and Adoption and an Anglican Lay Reader.  His work puts him in daily contact with the disadvantaged of society who experience the consequences of social policy the most acutely.  "I am more interested in human beings than human rights, and I want to take the actual effects of  liberal change back to its advocates and ask "Is that really what we want for our fellow citizens?"

The Human Rights agenda owes its origins to a post war Europe which had to confront its recent past in an utterly shamefaced manner.

The heirs of Goethe and Beethoven had an immediate moral dilemma, but plenty of others had shown a complicity or indifference towards persecution and the holocaust.

France, Germany and Italy began to re-invent themselves, with 1945 as a new "Year Zero", and it is not insignificant that as they coalesced, the resentments of General De Gaulle towards his erstwhile Anglo-allies, influenced the direction that Europe took, incidentally drawing its legal inspiration from the18th Century rationalist principles of the European enlightenment, rather than the more pragmatic example of the English Common Law.

Continental Jurisprudence has always preferred to enunciate metaphysical grand principles in a codified form leaving the judges to develop the law from those precepts, unfettered by any greater sense of history. Judges from the Anglo-sphere tempered their application of the law with a deeper sense of historical precedent so that Judges, like the redoubtable Lord Denning, could often be found interpreting - or creating law - in the spirit of "freeborn Englishmen" with reference to precedent of considerable antiquity.

This anchored sense of English history was, of course, anathema to anyone of a progressive persuasion.

It did not seem to have mattered to the critics that such attitudes had actually played a major part in preserving freedoms in the countries that followed the English Common Law, and neither was much credit given to the remarkable record that rather conservative Judges had for advancing enlightened causes. Before anyone proclaimed "Liberty, Equality, or Fraternity or "Give me liberty, or give me death", the normally reactionary Lord Mansfield was nevertheless capable of outlawing slavery in Somerset’s case in 1772. Later Lord Denning himself played a major role in developing, property rights for women and a benevolent approach to workers' compensation. The Common Law actually served us rather well.

Whilst most of the countries that signed up to the European Convention did so as they emerged from tyranny, Britain did so, not because we needed to, but rather because it seemed rather impolite not to!

I wonder if those who took that decision would have done so, had they realised the carte blanche that it offered to modern, mainly liberal judges, to subvert traditional values and to strike down legislation of elected Parliaments?

What would they have made of the decision to keep a 13 year old’s abortion from her parents? Would they have espoused the rights of prisoners to have access to pornography and condoms? Is that where the high flown aspirations of the Convention were heading at the point of its inception in 1950?

Both the Common Law and the Convention allow judicial discretion, but whereas the former was rooted in a culture, acceptable to its peoples, the latter seems only to be constrained by the prejudices of the current crop of Judiciary.

This is not a uniquely European phenomenon. In the past 40 years, both State and Federal Supreme Courts of the USA have evolved in a similar direction, with liberal majorities moving away from the simple interpretation of laws into the field of significantly changing it.

Some of the examples are breathtakingly bold. Thus in February 2004 the Massachusetts Supreme Court managed to "discover" that the 1776 American Constitution intended gay marriage all along, but amazingly this fact had eluded all the other jurists for 200 years and only they had been bright enough to notice this!

Of greater import are the issues of abortion, gun control, the death penalty and school prayer, each of which have been controversially brought before the Court by liberal pressure groups.

Not only do these attract visceral debate in their very nature, but raise both for Americans, and us, an important point of principle.

Within the American controversy lies a fundamental issue of democratic deficit.

In Britain, those who promoted Abortion Rights, and Civil Partnerships did the honourable thing and put their case through Parliament. In the USA, Liberals who do not have a hope in hell of securing a democratic mandate have secured their way through legislative interpretation by unelected Judges against the wishes of the majority of the people.

That is about to change with the imminent appointment of Judge Samuel Alito, but his plain bias against judicial "activism" (for which read "legislation") will signal an end to the creeping barrage of liberal social change.

The likes of Teddy Kennedy who were happy to appoint liberal judges are currently howling at the moon at the effrontery of a President willing to shift the balance the other way.

But as we watch this unfold over there, should we be asking similar questions here?

Is it not time to unpick some of the assumptions woven into the Human Rights discourse that the current interpretations of human rights are universal, immutable and valid?"

Does a country with access to a national and international heritage of culturally sensitive Common Law still need to be tied to a European Standard? Is not the sub-text that we cannot be trusted to protect our own people’s rights without supra- national intellectual oversight?

Why should our elected Government not have the right to imprison foreign nationals who have chosen to inflict their unwelcome presence upon us? There is, after all a choice, Belmarsh - or some place else? We did, after all, imprison many foreign nationals as we went about freeing Europe so that we could set up the European Convention on Human Rights. Does anyone detect a certain irony here?

As the EU expands, is it right to assume that there can, or needs to be the same parameters of family life, in say Istanbul, Islington and Warsaw?

I invite you to devise your own questions along these lines.

And so I ask my question in the heading.

There is an unspoken assumption amongst the chattering classes that our currently defined "human rights" are unquestionably good and necessary, and any suggestion that we could profitably do without them and the paraphernalia that goes with them will of course send Cherie Blair into paroxysms of uncomprehending fury - but there are other advantages!!


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