Conservative Way Forward 22 June 2016 (the day before EU referendum)
One of the most misleading claims that the remain campaign have put out is that our human rights will be at risk if we leave the EU – implying that it is Europe that has given us human rights. Nothing could be further from the truth. Not only did we invent human rights centuries before the French Revolution, but the European version of human rights that derives from that era is both contradictory and flawed, while the EU itself represents a threat to some of our historic national values such as democracy and parliamentary sovereignty.
This was something that Margaret Thatcher ‘got’. When President Mitterrand tried to set her up by arranging the G7 summit in Paris to coincide with the bicentenary of the French revolution, forcing her to be there, she forcefully told a French newspaper:
‘Human rights did not begin with the French Revolution; they stem from a mixture of Judaism and Christianity. We had 1688, our quiet revolution, where parliament exerted its will over the King. It was not the sort of revolution that France’s was. “Liberty, equality, fraternity” – they forgot obligations and duties I think. And then of course the fraternity went missing for a long time.’
Mrs Thatcher was referring to a tradition of human rights going back at least as far as Magna Carta (1215) that for centuries had been referred to as 'the ancient rights of Englishmen'. These were rights incorporated in various acts such as the Habeas Corpus Act (1679), the bill of rights (1688), as well as rights developed by common law judges, such as the Felton case (1628) which forbade the state from using torture to obtain evidence and the Somerset case (1772) which declared any slave in England to be free. In the lead up to the American war of independence those opposing the government of George III referred to themselves as ‘patriots’ precisely because they were reasserting their ‘ancient rights as Englishmen’ that the crown had denied them and they specifically looked back to Magna Carta.
There was and remains a crucial difference between this Anglo-American system of human rights and that developed by writers such as Thomas Paine in the era of the French revolution which later gave rise to modern European human rights law. The British approach primarily works by placing specific restrictions on the extent to which the government can interfere in ordinary people’s lives, in other words it is a ‘top down’ approach. However, the European approach is a ‘bottom-up’ approach that gives abstract and seemingly ever increasing rights to individuals – but conversely does not so clearly place restrictions on the power of the state – or EU bureaucracy!
Edmund Burke, in his 1790 Reflections on the Revolution in France, contrasted this concrete British approach epitomised by parliament's Petition of Right during the reign of Charles 1, with the abstract ‘rights of man’ claimed by the French revolutionaries:
‘The parliament says to the king, “Your subjects have inherited this freedom”; claiming their franchises, not on abstract principles “as rights of men,” but as the rights of Englishmen.’
These historic rights which are embedded in our legal institutions include:
A further problem inherent in the European approach is that it creates a seemingly ever increasing list of ‘new’ human rights. It does so because it fails to distinguish between what Yale professor Nicholas Wolterstorff calls: a) genuine human rights i.e. things we actually need to live, such as the right to life, the right to own property in its broadest sense; and b) natural rights i.e. the right to do something that most humans can naturally do - such as a man and woman becoming parents; and c) socially conferred rights - i.e. rights which parliament has decreed we should have such as the right to paid holiday. This latter type of ‘right’ generally creates an obligation on someone else, such as the government or our employer, to do something for us, but is not of the same significance as genuine human rights.
The ‘top down’ British system of human rights largely avoids these problems and protects historic British rights such as freedom of speech and freedom of religion better than the European approach. It does so precisely because as a top down approach it does not, for example, set the rights of one group of people to free speech against another group of people not to be offended.
More significantly, the British approach to human rights also enables us to have a workable definition of ‘extremism’ i.e. extremists are those who are ‘extreme’ in relation to historic British values, such as those set out above. This is of crucial importance at a time when the social liberals are currently trying to hijack the definition of extremism to label mean anyone who disagrees with their own socially liberal values as ‘an extremist’, something that in itself presents a serious threat to Britain’s historic national values.
Equally importantly, the British system of human rights sets limits on the power of governments. It tells us what governments cannot do to us. That is an area where the European approach to human rights and European values in general are significantly weak. In part this reflects the fact that many European countries have had absolutist governments or even dictatorships until relatively recently unlike the long history of constitutional development that Britain has experienced since at least the time of Magna Carta.
However, if we are honest the problem is not simply that too many people in the UK have been fed the falsehood that human rights derives from the era of the French revolution and we owe them to Europe. The real problem is that we no longer know our own history and have had our confidence sapped in our own culture. The ‘rights of Englishmen’ – a term used by the Irishman Edmund Burke – are part of what made Britain great and part of the great gift that Britain gave to the rest of the English speaking world and commonwealth. Now is a great time to reassert them!
This was something that Margaret Thatcher ‘got’. When President Mitterrand tried to set her up by arranging the G7 summit in Paris to coincide with the bicentenary of the French revolution, forcing her to be there, she forcefully told a French newspaper:
‘Human rights did not begin with the French Revolution; they stem from a mixture of Judaism and Christianity. We had 1688, our quiet revolution, where parliament exerted its will over the King. It was not the sort of revolution that France’s was. “Liberty, equality, fraternity” – they forgot obligations and duties I think. And then of course the fraternity went missing for a long time.’
Mrs Thatcher was referring to a tradition of human rights going back at least as far as Magna Carta (1215) that for centuries had been referred to as 'the ancient rights of Englishmen'. These were rights incorporated in various acts such as the Habeas Corpus Act (1679), the bill of rights (1688), as well as rights developed by common law judges, such as the Felton case (1628) which forbade the state from using torture to obtain evidence and the Somerset case (1772) which declared any slave in England to be free. In the lead up to the American war of independence those opposing the government of George III referred to themselves as ‘patriots’ precisely because they were reasserting their ‘ancient rights as Englishmen’ that the crown had denied them and they specifically looked back to Magna Carta.
There was and remains a crucial difference between this Anglo-American system of human rights and that developed by writers such as Thomas Paine in the era of the French revolution which later gave rise to modern European human rights law. The British approach primarily works by placing specific restrictions on the extent to which the government can interfere in ordinary people’s lives, in other words it is a ‘top down’ approach. However, the European approach is a ‘bottom-up’ approach that gives abstract and seemingly ever increasing rights to individuals – but conversely does not so clearly place restrictions on the power of the state – or EU bureaucracy!
Edmund Burke, in his 1790 Reflections on the Revolution in France, contrasted this concrete British approach epitomised by parliament's Petition of Right during the reign of Charles 1, with the abstract ‘rights of man’ claimed by the French revolutionaries:
‘The parliament says to the king, “Your subjects have inherited this freedom”; claiming their franchises, not on abstract principles “as rights of men,” but as the rights of Englishmen.’
These historic rights which are embedded in our legal institutions include:
- Freedom of the individual under the law - no arbitrary imprisonment by the government or anyone else without a proper trial, including the right for one’s case to be decided by one’s peers i.e. trial by jury.
- One law for all with even the government being accountable to the law through an independent judiciary. As Sir Edward Coke put it ‘The king is under no man save under God and the law.’
- Freedom of religion – the right not merely to worship, but also publicly to seek to persuade others of the truth of one’s beliefs, with no bar being placed on anyone’s access to university or public posts because of one’s faith. This goes back to Magna Carta, but its real foundation lies in the 1559 Elizabethan church-state settlement, which set up separate spheres for church and government. The government was forbidden from interfering in the interpretation of scripture or the sacraments and the church from swearing allegiance to a foreign power.
- The right of everyone to own private property and not to have it arbitrarily seized by the government. This too goes right back to Magna Carta.
- Freedom of speech.
- Freedom of the press – dating back to 1695 when the requirement for newspapers to be licensed – and thereby censored – was abolished.
- The sovereignty of parliament, it is parliament that makes laws. While the common law represents a long history of judges setting legal precedents in areas where parliament had not passed specific legislation, parliament still retained and occasionally used its prerogative of passing laws in areas previously covered by common law judgements. However, the European Court of Human Rights turns this on its head with its unelected judges sometimes ‘requiring’ the democratically elected UK parliament to change our laws.
A further problem inherent in the European approach is that it creates a seemingly ever increasing list of ‘new’ human rights. It does so because it fails to distinguish between what Yale professor Nicholas Wolterstorff calls: a) genuine human rights i.e. things we actually need to live, such as the right to life, the right to own property in its broadest sense; and b) natural rights i.e. the right to do something that most humans can naturally do - such as a man and woman becoming parents; and c) socially conferred rights - i.e. rights which parliament has decreed we should have such as the right to paid holiday. This latter type of ‘right’ generally creates an obligation on someone else, such as the government or our employer, to do something for us, but is not of the same significance as genuine human rights.
The ‘top down’ British system of human rights largely avoids these problems and protects historic British rights such as freedom of speech and freedom of religion better than the European approach. It does so precisely because as a top down approach it does not, for example, set the rights of one group of people to free speech against another group of people not to be offended.
More significantly, the British approach to human rights also enables us to have a workable definition of ‘extremism’ i.e. extremists are those who are ‘extreme’ in relation to historic British values, such as those set out above. This is of crucial importance at a time when the social liberals are currently trying to hijack the definition of extremism to label mean anyone who disagrees with their own socially liberal values as ‘an extremist’, something that in itself presents a serious threat to Britain’s historic national values.
Equally importantly, the British system of human rights sets limits on the power of governments. It tells us what governments cannot do to us. That is an area where the European approach to human rights and European values in general are significantly weak. In part this reflects the fact that many European countries have had absolutist governments or even dictatorships until relatively recently unlike the long history of constitutional development that Britain has experienced since at least the time of Magna Carta.
However, if we are honest the problem is not simply that too many people in the UK have been fed the falsehood that human rights derives from the era of the French revolution and we owe them to Europe. The real problem is that we no longer know our own history and have had our confidence sapped in our own culture. The ‘rights of Englishmen’ – a term used by the Irishman Edmund Burke – are part of what made Britain great and part of the great gift that Britain gave to the rest of the English speaking world and commonwealth. Now is a great time to reassert them!
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