Predictably, the Government’s proposals to scrap the Human Rights Act and replace it with a ‘British Bill of Rights’ have met with an ongoing storm of protest. Oddly, however, there has been little questioning as to whether it is legitimate in principle for the courts—made up of unelected people who will inevitably have their own personal beliefs—to have power to strike down legislation on the basis of what are essentially philosophical principles. After all, this country didn’t have anything like a Human Rights Act until the Blair government introduced it in 1998: while recourse to the European Court over alleged breaches of human rights was possible before that date, such matters were outside the remit of the British courts.
The Americans, with their written Constitution and their doctrine of ‘the separation of powers’—a concept alien to the tradition of British Parliamentary democracy—have been at it a lot longer. The function of the Supreme Court in adjudicating on Constitutional principles is enshrined in the Constitution itself. While the judgements of the court are always shrouded in judicial language, giving an appearance of objective impartiality, the commonly-accepted descriptors of ‘liberal justices’ (appointed by Democratic presidents) and ‘conservative justices’ (appointed by Republican presidents) give the game away. Similar dynamics are also at work in the lower courts.
In truth, the idea that general principles can be objectively applied, independent of the personal perspectives of the judgesmaking the ruling, is a fiction. The US Declaration of Independence makes high-minded assertions of a commitment to liberty and equality: and at the same time coexisted with the brutality of slavery. How is such a thing possible?Were the slaves on the sugar plantations free and equal? How was this contradiction not immediately recognised, and the institution of slavery struck down by the courts?
The answer is that according to the assumptions of the day, it would just have been obvious that these constitutional rights did not apply to black slaves—just as it is obvious to us that those assumptions were dead wrong. The most egregious infringements of rights and liberties take place when the cultural presumptions of the establishment are ranged against the individual; and the courts, being part of the establishment, offer no protection.
And as it was then, so it is now. Take the infamous case of the Oregon bakery, Sweet Cakes by Melissa, whose Christian owners were fined a staggering £350,000 and forced to the edge of bankruptcy for hurting the feelings of a same-sex couple when they declined on religious grounds to provide them with a wedding cake; and have now—even more staggeringly—been prohibited by an Oregon judge from talking publicly about their views. You might think, might you not, that in a nation whose constitutional First Amendment enshrines the freedoms of speech and of religion, such a thing could not happen. Except, of course, that it is ‘obvious’ to the bien pensants of the Oregon judiciary that such precepts do not extend to what are, to them, ‘bigoted’ views on same-sex marriage.
Here in the UK, in a case backed by the Northern Ireland Equality Commission (a statutory public body), a Belfast court fined Ashers Bakery for ‘discrimination’ when they refused to bake a cake bearing the slogan ‘support same-sex marriage’. This was not even a wedding cake that was being requested, but a cake bearing a political campaigning slogan with which theowners did not agree. Unfortunately for the bakers, their unfashionable views, challenging the liberal orthodoxy, were not seen as worthy of respect.
There can be no doubt that human rights—and in particular the right to freedom of speech and even of thought—are under threat in this country. The cases we have seen so far are but the tip of a fast-moving iceberg. The ‘Trojan Horse’ schools investigation, initially intended to address allegations of Islamic extremism in certain Birmingham schools, soon progressed to censuring Christian and orthodox Jewish schools for promoting the values of their own faith as opposed to ‘British’—for which read ‘liberal’—values in relation to sexuality and multiculturalism.
The government now proposes ‘extremism disruption orders’ to restrict access to electronic communications by non-violent individuals who are deemed to be ‘spreading hate’ and undermining ‘British values’ even though they have broken no law: again the initial target is Islamic extremism, but on the basis of recent precedent it not difficult to imagine that the net will soon be more widely extended. Will the counter-cultural message of The Conservative Woman one day be disseminated through the modern equivalent of Soviet underground presses?
Far from protecting our human rights, the Human Rights Act has made the situation worse, by essentially enshrining in law the worldview of a largely liberal judiciary. Replacing it with a British Bill of Rights may ensure that we are under the heel of British judges rather than foreign ones, but it will do little to secure our liberties.