Sunday, 21 August 2011

Human rights legislation is flawed

This is a bit of a diversion from my normal topic s. However when you come to a conclusion on a subject and find no matter what you read that no one else has quite the the same take, you are either suffering from some kind of psychosis or ought to explain yourself. Let’s assume it’s the latter.

The human rights act is a strange beast. It’s based, as I remember on the work of some committee run by Valerie Giscard D'Estaing. It seeks to be a form of constitution. Constitutions are logical and almost metaphysical beasts, and they fall into one of my area of interest.

It’s said that the philosopher Jeremy Bentham spent a lot of his time devising constitutions for a variety of new countries created by the turbulence of the early 19th century and sending them off, where they were universally ignored. I shouldn’t be ashamed to be in such company.

The fault with the human rights act is where it starts. If you look at the first constitution history knows well, that of ancient Athens, the very first consideration in deciding what rights applied to an individual was determining what kind of individual you were dealing with. In ancient Athens this was all about what deme you belonged to, if both your parents were Athenians, whether you were male, and whether you had lost rights through criminality or indigence.

There were multiple classes of people, from full male Athenian citizens meeting all the property limits to metics (foreign traders) to slaves. Each had different rights. Logically, the first thing you did when pleading in an Athenian court is explain which group you belonged to.

It’s deeply unpopular at the moment to consider kinds of people. It smacks of racism, sexism or whatever, but all the perceived flaws in the Human Rights act are concerned with this very issue. Prisoners get the vote or access to pornography, asylum seekers get to stay because they had children, all because the human rights act starts out by delineating rights before delineating who is to receive them.

Obviously I’m not proposing legislating for the return of slavery, or that women should have unequal rights to men, but our existing body of law does treat some people differently. The insane don’t get freedom if they are deemed to require treatment, prisoners have different rights from the rest of us, as do members of the armed services and children.

If Cameron ever gets to fight off the Lib Dems and create the British bill of rights he ought to consider that it should be a grid, not a list.

Clearly, given our current set of laws, identifiable categories of people are citizens of the UK, subdivided into children, prisoners, the insane, members of armed forces, undischarged bankrupts and none of the above, Citizens of the EU, with similar subdivisions and others.

If you want to create a bill of rights that the citizens of the UK consider just, you must start with which of the groups the subject belongs to, and the rights attached must reward citizens over all others.

On another point, bills of rights are somewhat alien to the British world view, because the inference is that some body such as the state dispenses rights, and that such things are theirs to give away.

We don’t believe that this side of the channel, though it’s long been considered normal on the other side.

Perhaps what we need is a “bill of wrongs”. I.e, a document clearly written to say a citizen has the right to do absolutely anything apart from a small list of exclusions. This list varied to cover the various categories I’ve mentioned above.

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