Exclusive: Guest Post by Sir Roger Scruton. How do we decide which human rights should be protected in law?

Theresa May’s Government has floated the idea that the next election might be contested on a pledge to incorporate all the rights guaranteed by the European Convention on Human Rights, while leaving the European Convention and the jurisdiction of the European Court of Human Rights. There are plenty of arguments against such a course – not least the practical one that the midst of tricky Brexit and post-Brexit negotiations might not be the best time to take on an avoidable burden of human rights law reform – but it is in some ways a more coherent policy than the previous one which, insofar as it could be discerned at all, was to dilute some of the Convention rights in UK law while agreeing to abide by the decisions of a ECtHR which would not agree to any such dilution.

Critics have largely concentrated on the political and diplomatic pitfalls of abandoning the European Convention, and with it the Council of Europe. Would it really be right that Britain should join Belarus, Kosovo and The Holy See as the only sovereign nations outside the Council of Europe? On the other hand, do we really want to be part of a human rights club that includes Vladimir Putin’s Russia?

But leaving aside these international issues, should Theresa May’s proposal become official Conservative policy, it will mark the final acceptance by the Conservative Party that the common law alone is inadequate to protect human rights, and a recognition that “universal human rights” have a central part to play in British law.

But what are these “human rights?”

Should they all be equally protected by law?

Are some rights more universal than others, and if so how do we decide which are deserving of either protection or special status?

It is easy for lawyers to become complacent and to stop thinking. Nowhere is this tendency better demonstrated than in the law of human rights where each side of the debate tends to dig itself into deep trenches, while being more willing to engage in bad tempered name-calling than in constructive debate.

Barristerblogger is therefore proud to publish this exclusive guest post by the country’s leading conservative philosopher and thinker, Professor and Bencher of the Inner Temple, Sir Roger Scruton.

The European Court of Justice and the European Court of Human Rights are courts whose decisions are made by judges trained in jurisdictions with distinct traditions of legal reasoning, many from former communist states in which law, as an independent source of authority, was deliberately extinguished. These judges cannot be removed from office by any procedure that a citizen could initiate, and their judgments override the legislative and judicial decisions of sovereign countries under their sway. This opens an avenue for transnational elites to impose their will on people in defiance of local customs and national sovereignty.

Rights have always been important in our common law. They govern the procedures of the courts, and the standing of the person who appears before them. The right to a fair trial, the right to compensation from the one who injures you, the right to the fulfilment of a contract freely engaged in – all such rights are implied in common law procedure and the sum of them defines the liberty of the British subject. In the 1689 Bill of Rights some of these rights were made explicit, in recognition of the fact that they had been overridden or ignored in the previous decades of civil conflict. But in normal peace-time it has never been necessary to pass statutes guaranteeing what the courts have always upheld, namely the rights implied by the very ideas of impartial judgment and equality before the law.

In the wake of the two world wars, however, a new conception of human rights was adopted. These rights were to define a position outside and above the jurisdiction of any particular nation state, and were conceived as a priori constraints on what a government – any government – might do. Human rights, so understood, set limits to government, and existed in order to protect human beings from oppression by those who governed them. The original text of the European Convention on Human Rights suggests that human rights are freedoms from state control and government interference, like the rights to life, liberty and the pursuit of happiness advocated in the American Declaration of Independence.

However, the search for liberty was already associated with a countervailing search for ‘empowerment’. The negative freedoms offered by traditional theories of natural right, such as Locke’s, do not compensate for the inequalities of power and opportunity in human societies. Hence egalitarians, who dislike hierarchies of every kind, began to insert more positive rights into the list of negative freedoms. These positive rights come in two forms: claims for benefits, and rights to ‘non-discrimination’ accorded to privileged groups. Claim rights are already apparent in the UN Declaration of Human Rights, which begins with a list of freedom rights and then suddenly, at article 22, begins making radical claims against the State – claims which can be satisfied only by positive action from government. Here is article 22:

“Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”

The inclusion of this and similar clauses is due to Eleanor Roosevelt’s growing socialist convictions. Contained within this right is an unspecified list of other rights called ‘economic, social and cultural’, which are held to be indispensable not for freedom but for ‘dignity’ and the ‘free development of personality’. Whatever this means in practice, it is quite clear that it is likely to involve a considerable extension of the field of human rights, beyond those basic liberties acknowledged in the American Declaration. Those basic liberties are arguably necessary for any kind of government by consent; the same is not true of the claims declared in section 22 of the UN Declaration.

The Declaration goes on in this vein, conjuring a right to work, to leisure, to a standard of living sufficient to guarantee health – and other rights which are, in effect, claims against the State rather than freedoms from its encroachments. Even if these are rights, they are not justified by the same philosophical arguments as justify the freedom rights granted earlier in the Declaration. Moreover, they open the door to the ‘rights inflation’ that we have witnessed in recent decades, and to an interpretation of human rights that is prodigal of conflicts.

Rights to ‘non-discrimination’ are a more recent development, and have been fundamental to the attacks on national legislation initiated by the European Courts. A right to non-discrimination is essentially a privilege accorded to some favoured group, which enables members of that group to impose their will on others, and which enables the courts to overthrow any legislation that ‘discriminates’ against the protected class of litigant. Many of the interventions that have caused resentment have been based on such alleged rights of non-discrimination: the abrogation of planning law for the benefit of Travellers, for instance, or the wedding cake cases and hotel bedroom cases under the rubric of ‘gay rights’. Study of such cases illustrates four very important matters.

The first is that, as Dworkin puts it, ‘rights are trumps’.¹ That is, in a court of law, if you can show that your interest in the matter is also protected as a right, then you win the case against anyone whose interests, however great, are not so protected. The huge interest of the local residents in retaining the value and amenity of their properties (which represent, for most of them, their life’s savings) have counted for nothing in cases against Travellers, since – although protected by planning law – those interests were not protected as a right, but only as an interest.

Second, unlike the solutions issued by a legislature, those issued by a court are not compromises: they are not attempts to reconcile the many interests involved in a situation, and the court does not see itself as formulating a policy for the good government of a community – that is the task of a legislature, not a court. The court sees itself as resolving a conflict in favour of one or other of the parties. In normal circumstances, a case before a civil court is a zero-sum game, in which one party wins everything, and the other loses everything. There are no consolation prizes. The problem is exacerbated when the decision in first instance is in the hands of a court outside the jurisdiction, like the ECHR. The judges in that court do not pay the cost of their decisions, nor do their countries, as a rule, pay the cost. Legislation involving the long-term investment and protection of precious resources, such as our Town and Country Planning Act, can be sunk by a single judgment granting Travellers the ‘right’ to ignore it.

Third, the human rights declared by the various decisions of the courts are not obviously of the same philosophical, moral or political standing. A doctrine of human rights is entitled to the name only if the rights declared can be established a priori. I think we can all see the force of the idea that there are certain things that cannot be done to human beings – certain basic goods, including life itself, that cannot be taken away from them unless they in some way forfeit them. Life, limb and the basic freedom to pursue our goals undisturbed (compatible with a similar freedom enjoyed by others) are plausible candidates. You can see how the entitlement to these things lies at the heart of political cooperation: for without some guarantee that, in these respects at least, people are protected from invasion, there really could not be a system of law that enjoyed the consent of those subject to it.

Furthermore we can understand those basic freedoms as rights partly because we can understand the reciprocal duty to respect them. My right to life is your duty not to kill me: and duties of non-encroachment and non-infliction are naturally upheld by morality and easily enforced by the law. If you have a right to x then you are wronged by the person who takes x away. However, once we step outside this narrowly circumscribed area of basic freedoms, we enter a much more shady and conflicted territory. The Travellers’ cases depend upon the provision for ‘non-discrimination’ – a provision that steps outside the area of basic freedoms, into that of justice. And this provision, meant to prevent one group of citizens from arbitrarily enjoying privileges denied to another, has been used precisely to claim for the minority privileges that are legally denied to the majority.

Fourth, the case illustrates the increasing intrusion into the field of human rights law of the concept of a ‘group right’. The original invocation of natural rights by Locke, Pufendorf and others was designed to protect the individual from arbitrary power. You held your natural rights, according to those thinkers, as an individual, and regardless of what group or class you belonged to. Natural rights oblige people to treat you as a free being, with sovereignty over his life, who has an equal claim on your respect. But the new ideas of human rights allow rights to one group that they deny to another: you have rights as a gipsy, a woman, a homosexual, which you can claim only as a member of that group. To think in this way is to resurrect the abuses to which Locke and others were in search of a remedy – the abuses which led to people being arbitrarily discriminated against, on account of their class, race or occupation.

Just what rights are universal human rights, and how do we prove that they have this standing? The increasingly arbitrary lists that form the substance of international declarations or which emerge from the decisions of the European courts seem to be more the product of political orthodoxies or social aspirations than any well-founded intuition concerning the a priori grounds of law. So how should we proceed in winnowing out the plausible from the implausible candidates?

We should distinguish claims from liberties. A claim arises from obligations incurred. For example, if I have transferred to you my house in accordance with a contract of sale, then I have a claim against you for the agreed price, and this is a claim-right of mine – in other words, a right that would be upheld in a court of law, should any dispute arise. Claim-rights also arise in tort. If your negligently allowing your cows onto my lawn causes £500 worth of damage, then I have a claim-right against you, for that sum.

In those straightforward cases of contract and tort, we easily see that every claim-right in one person defines a duty in the other. And this duty is a legal burden. Often it cannot be discharged: the person claimed against may not have the means to satisfy the claim. However, he ought to satisfy it, and the law will compel him to do so to the best of his power. Furthermore, the duty that the law imposes arises from a relationship of responsibility. In both contract and in tort – as well as in trust – the law holds someone liable for a claim made by another. And this liable person is identified, either as an individual, or a company or a group, which has acted so as to incur the liability in question.

Hence claim-rights, in the normal cases when they arise, are quite different from freedom-rights. A freedom-right imposes a general duty on others to observe it; but it may arise from no specific relationship, and may make no specific demands of any individual. It is a right that may be invaded by others; but by doing nothing they respect it, and the duty to observe it is neither onerous nor a special responsibility of any particular person. Such is my right to move freely from place to place, my right to life, limb and property, and the other rights traditionally acknowledged as flowing from the natural law. You respect them by non-invasion, and the duty to respect them falls clearly and unambiguously on everyone.

Now it is easy to see why a classical liberal might object to the expansion of the list of human rights to include claims to non-specific benefits like health, education, a certain standard of living and so on. For, in the absence of any relation of liability, specifying who is to satisfy these claims, they inevitably point to the state as the only possible provider. And large, vague claims require a massive expansion of state power, a surrender to the state of all kinds of responsibilities that previously vested in individuals, and the centralisation of social life in the government machine. In other words, claim rights push us inevitably in a socialist direction. Moreover it is a direction which is diametrically opposed to that for which the idea of a human (natural) right was originally introduced – a direction involving the increase, rather than the limitation, of the power of the state. Likewise a classical liberal would object to the inclusion of non-discrimination rights, since they provide unearned claims against all-comers, and are enforced by coercion on the part of the state. There may be good reasons of policy for including them as civil rights; but these reasons are reasons of policy, not reasons of natural justice. Hence non-discrimination rights are matters for the legislature, and not for a ‘court of human rights’. It is precisely because non-discrimination has been elevated to the status of a human right, that it has conferred on extra-territorial courts the power to undermine the entire social and legislative inheritance of the nation states of Europe. (See the reports of European Dignity Watch in this matter.)

It seems to me that rights talk has the function of enabling people to claim a sphere of personal sovereignty: a sphere in which their choice is law. And spheres of personal sovereignty in turn have a function, namely that they give the advantage to consensual relations. They define the boundaries behind which people can retreat and which cannot be crossed without transgression. The primary function of the idea of a right is to identify something as within the boundary of me and mine. If I have a right to sit in a certain room then you cannot expel me from it without wronging me. By determining such rights we define the fixed points, the places of security, from which people can negotiate and agree. Without those fixed points negotiation and free agreement are unlikely to occur, and if they occur, their outcome is unlikely to be stable. If I have no rights, then the agreement between us provides no guarantee of performance; my sphere of action is liable to constant invasion by others, and there is nothing that I can do to define the position from which I am negotiating in a way that compels you to acknowledge it.

Rights, then, enable us to establish a society in which consensual relations are the norm, and they do this by defining for each of us the sphere of personal sovereignty from which others are excluded. This explains Dworkin’s view, in Taking Rights Seriously, that ‘rights are trumps’. A right belongs to the fence which defines my sovereign territory: by claiming it, I put an absolute veto on things that you might do. It also explains the direct connection between right and duty: the absoluteness of the right is tantamount to a duty to respect it. And it explains the zero-sum nature of disputes in a court of law, when rights are invoked to decide them.

If we look at rights in this way, as instruments which safeguard sovereignty, and so make free deals between sovereign partners into the cement of society, then we see immediately why freedom rights have the best claim to universality, and why claim rights and non-discrimination rights – detached from any history of responsibility and agreement – should be adopted, if at all, only with caution. A claim against another, if expressed as a right, is an imposition of a duty. If this duty arises from no free action or chain of responsibility that would provide a cogent ground for the claim, then by expressing it as a right we over-ride the other’s sovereignty. We say to him: here is something you must do or provide, even though your duty to do so arises from nothing you have done or for which you are responsible. This is simply a demand that you must satisfy.

How different such a case is, at least, from that of freedom rights. For these are by their very nature ‘sovereignty protecting’ devices. They are vetoes on what others can do to me or take from me, rather than demands that they do something or give something which I have an interest in their doing or giving. The duty that they define is one of non-interference, and the interest that they protect is the most fundamental interest that I have, namely my interest in retaining the power to make decisions for myself in those matters that most closely concern me.