An excess of Human Rights?

On Wednesday this week I happened to hear ‘Thought for the Day’.  It is part of the Today programme but, when I hear it come on, I generally find something else to listen to as it is normally too full of platitudes. On this occasion, however, the speaker was not a Bishop, but a Parliamentary lawyer, Daniel Greenberg, and so I decided to give it a go.  He said that Article 2 of the 1st Protocol to the ECHR, which makes a right to education a human right, also provides that the State must "respect the right of parents to ensure that the education of children is in conformity with the religious and philosophical conviction of the parents". 

He pointed out that there is massive non-compliance with the principle contained in this Article in China.  China is reportedly separating Muslim children from their families, religion and language, and is engaged in a rapid, large-scale campaign to build boarding schools for them.  The BBC has reported attempts to “remove children from their roots” in parallel to Beijing’s continued detention of an estimated 1 million Uighur adults from the western Xinjiang region in camps. It has been accompanied by a massive crackdown on the rights of that minority group.  One mother interviewed by the BBC said: “I don’t know who is looking after them,” pointing to a picture of her three young daughters. “There is no contact at all.”.  The Chinese government denies the truth of these reports, saying that they are merely responding to potential Muslim terrorism and at the same time trying to improve the standard of living and the life-chances of the people in a very poor region.  Hmm.

But the Article 2 requirement that the State ‘respect the right of parents to ensure education’ of their children ‘in conformity with the parents’ religion and philosophy’ is somewhat strange as a human right. Children are normally regarded as having their own human rights, independently of their parents.  They are not regarded as their parents’ chattels.  But here, they are.  To take a rather extreme example, after WW2, the German education system was revised in order to at least try to emphasise the undesirability of National Socialism, even though many of the parents would still have had an attachment to it.  We met two of them when we were looking at the possibility of a triangular twinning with a town near Frankfort.  They were a perfectly charming couple, but the husband had been a colonel in the SS and his son warned us that their views had not really changed.  So we definitely didn’t talk about the war! 

The point is that such a parental right should not be an absolute one.  And it appears that for our Courts that is indeed the case.  Whenever we see the word ‘Respect’ there will be implied into it a discretion for the Court to decide what it means in the context; how different rights are to be balanced. In the context of education, ‘Respect’ does not prevent the State from setting and planning the school curriculum.  It does though apparently require the matters in the curriculum: ‘to be conveyed in an objective, critical and pluralistic manner so that parents’ different religious and philosophical convictions are respected’.  I trust that’s clear. 

To the mainly Muslim parents of children at Parkfield Community Primary School it seems to be far from clear.  In fact, initially I thought that Mr Greenberg’s talk was going to be about this problem as the ECHR doesn't have an obvious connection to China.  These parents are the ones holding up posters outside the school saying “My child, my choice!”.  This is in response to the introduction of a book at the school called “No outsiders” which seeks to introduce the concept of families with other than male and female parents.  The book is in line with government policy to promote acceptance of LGBT families who have the protected characteristics provided for by the Equalities Act 2010.  Other posters say “We are not homophobic”, but that seems somewhat doubtful. So then, (misunderstood) Article 2 human rights are being used to attack other people for the way they live as families, despite the law enacted by Parliament.

It seems that human rights are often cited for anything which Parliament has not yet enacted into our legislation.  But in my humble opinion and, it seems, that of retired Supreme Court Judge, Jonathan Sumption, some of the political difficulties which we have actually stem from an excess of human rights. The original European post-war convention, published in 1950, dealt with things upon which we could all agree. It outlawed torture, arbitrary killing or imprisonment and provided for freedom of thought and expression, due process of law and so on.  In the 1950s we expected our parliaments to decide on other more controversial things after possibly prolonged discussion and debate.  It would be part of a democratic political process.  Such debate can, although does not always, produce consensus for change. If not, then the change will be at least postponed.  But when there is a consensus, and it is incorporated into legislation, it is likely then to be generally accepted. Examples are the abolition of capital punishment and the decriminalisation of homosexuality in this country, done when the Convention did not actually have the force of law in the UK.

The European Court of Human Rights at Strasbourg however decided a long time ago that it could act as an additional creator of law, unanswerable to the People.  It decided that the Convention was a ‘Living Instrument’.  This means that its interpretation could be extrapolated to mean whatever the Judges considered that it should have said if we were re-writing it to give the rights they considered appropriate for modern democratic societies.  Obviously, if the new rights were already in the Convention then the Judges would not need the concept of the Living Instrument.  Of course some development of the text is unavoidable when applying an abstract statement of principle to concrete facts. In addition, concepts in the convention, such as the notion of inhuman or degrading treatment, evolve over the time with changes in our collective values.
But the Strasbourg Court has gone much further. As Jonathon Sumption points out in his Reith Lectures:
“Article 8 of the convention is probably the most striking example of this kind of mission creep. Article 8 protects the human right to private and family life, the privacy of the home and personal correspondence. It was designed as a protection against the surveillance state in totalitarian regimes. But the Strasbourg Court has developed it into what it calls a principle of personal autonomy. Acting on this principle, it has extended Article 8 so that it potentially covers anything that intrudes upon a person’s autonomy unless the Court considers it to be justified. They include the legal status of illegitimate children, immigration and deportation, extradition, criminal sentencing, the recording of crime, abortion, artificial insemination, homosexuality and same sex unions, child abduction, the policing of public demonstrations, employment and social security rights, environmental and planning law, noise abatement, eviction for non-payment of rent and a great deal else besides. All of these things have been held to be encompassed in the protection of private and family life. None of them is to be found in the language of the convention. None of them is a natural implication from its terms. None of them has been agreed by the signatory states. They are all extensions of the text which rest on the sole authority of the Judges of the Strasbourg Court. This is, in reality, a form of non-consensual legislation.”.

And so the question is whether we want these things decided by Judges or by our Parliaments.  Parliament is not very popular at the moment, but equally there is a lot of unhappiness with the imposition of many of the changes made in the name of Human Rights.  A genuine political process may well be slower in introducing change, but would would result in far less resentment by people who at the moment feel that their views have been trampled underfoot by a ‘liberal elite’ - in this instance, the Judges.  Whilst in the main agreeing with the Judges in their decisions or even wishing that they would go further, I have for a number of years thought that substantial changes to our ways of doing things require time, discussion and agreement at a political level, rather than non-democratic imposition by even well-meaning Courts.

Paul Buckingham

18 July 2019

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