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Friday, March 24, 2017
Text: Alan Bray lecture by Conor Gearty. Part 2
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¬†If we ignore labels and concentrate on outcomes we can see that the advance of democracy was precisely matched by an improvement in the dignity of the people ≠ it was not just a chance to choose your exploiter, as Marx and his followers had believed. In the secular world therefore, the link between democracy and human rights was clear. The concept of human rights was absolute and invariable, but ≠ and this is a key point - its manifestation on the ground could change over time. Crucially, and this is a second key point, the body best able to gauge what the idea of human rights required at any particular time and for any particular community was not a gathering of judges, or priests, or even philosophers, but rather an assembly of that community's representatives brought together in a legislative forum for this very purpose. So on this model parliamentary legislation becomes a means of securing human rights rather than a subversion of them, with the content of our human rights being fleshed out and expanded as our understanding of ourselves improves and our sensitivity to the dignity of others grows with our increased self-awareness. Such an assembly is also best placed to work out how much a community can afford to do to promote the dignity of every individual within it. Of course there is a glaring weakness in this secular model of rights protection, one that was brutally exposed by the collapse into fascism of democratic governments in the 1930s, in particular that of Germany. What happens when the elected representatives of a state turns on a section of its own people, and the majority then cheer on from the sidelines while this minority is picked on, bullied and shockingly oppressed? It might seem extraordinary to our post-Holocaust sensibilities, but early proponents of democracy simply could not imagine that an elected system of government could be other than benign in its treatment of all its people. We now know better, and our way of coping with this new and frightening truth has not been to dispense with democracy altogether (for what other framework of government could possibly do better?) but rather to allocate to another branch of the state a shared responsibility (with the majoritarian, potentially extremist legislative arm) for the protection and vindication of our human rights. Thus it has been the courts ≠ unelected and in the democratic sense unaccountable ≠ that have emerged in the post World War II period as increasingly central to the protection of human rights, both as guarantors of due process in the criminal sphere and as long-stop referees, able to blow the whistle vigorously if the democratic teams are judged to have committed a human rights foul. This is not the place to examine the record of the judicial branch in relation to the protection of human rights, or to ask whether too much faith is now accorded in the judges, just as it was in an earlier age to the priests. The relevant point to be drawn from this brief excursion into the growth of human rights in the modern era is that firstly the protection and vindication of human rights is a duty shared between all three branches of the State, and that in almost every country which is committed to the protection of human rights, the term is nowadays understood to embrace not one large and immutable concept but rather three smaller ones of greater clarity and specificity. We can conveniently call these the three basic principles of human rights. The first is respect for democratic governance and civil liberties, involving an obligation to arrange the state in such a way that the key decisions that are made about the way it is run, and its future, are made by elected representatives, chosen by the whole community. Secondly there is the principle of legality, which insists on a role for the judicial branch and in so doing demands that restrictions on freedoms can be imposed only by decision of the elected body and not by any kind of executive dictate, and that everybody should be entitled to procedural fairness when they are made the objects of state power acting against them for the good of the community. Thirdly there is the principle of respect for human dignity, which manifests itself in a respect for the autonomy of the individual and respect for his or her life choices, insofar as these do not encroach adversely upon those of others. As I indicated a moment ago, in the modern state, we find each of our great branches of government engaged in the protection of these three core principles. None has specific responsibility for any one area in particular; there is an element of overlapping and occasional tension between the three. But the overarching goal ≠ the protection and vindication of human rights ≠ is one shared by all. The UK is an excellent example of how the system works. The elected House of Commons has long been the lead agent in defining what respect for human dignity and individual autonomy should in fact entail in practice. In the old days this meant ensuring the people were not starving, were treated when they were ill, and got an education when they were young. These important gains need of course constantly to be protected least our awareness of what is entailed by the dignity of those around us declines but for now they are well-entrenched. (Where Parliament reneges on its duties, as with asylum seekers recently, the courts have stepped in to ameliorate the position as best they can.) Since the 1960s, through the impeccably democratic procedure of private members' bill, the British understanding of what it means to respect another person's worth has expanded to embrace aspects of his or her sexual identity and reproductive capacity that would have been shocking to earlier generations, and is still shocking to many today. When Parliament decided to enact the Human Rights Act 1998, it invited the judiciary to share responsibility for working out what general ideas like respect for privacy, the right to security of the person, the right to life, and so on meant in practice. As new technology advances and our sensibilities with regard to the needs and wishes of other people grow, so fresh questions about the remit and range of our human rights are thrown up. It is for the executive to ask these questions, and for the legislature and our courts to seek to answer them. A case in point that will be very familiar to many of you are the Government's plans for Civil Partnerships. As Celia Gardinier has remarked, these proposals should 'be seen as a response by the government to a social change which is now well established and a judiciary who are pushing the law in the same direction.' Celia Gardiner goes on to note that '[b]oth the DTI and the judges see the issue as one of discrimination. It is about the injustice of recognising heterosexual couples as a family unit whilst treating same sex couples as if they were two separate individuals.' I do not want to stray into the merits of the question in this lecture, though I digress briefly to say that I agree with Martin Pendergast that '[t]hey provide an option for same sex-couples to be formally included within the social fabric, if [such couples] so wish. It would seem therefore that the proposals will strengthen social cohesion rather than weaken it. They will enhance the common good rather than threaten it.' My interest just now is mainly with the procedure, with how our ideas about human dignity get translated into human rights laws. These civil partnership proposals are an example of how our understanding of human rights grows as our awareness of the whole person increases and we come to see that new laws are needed to give even further recognition to the dignity of the individual, not now to secure food for them, to educate them or to treat them when they are ill, but to permit them to express their sexuality without fear of discrimination or prejudice. In this instance, social change is not the enemy of human rights but its ally, and the task of improving our sensibilities rests, as I have said, with all three branches of government. The formal response to the proposal from the Catholic Bishops' Conference of England and Wales, issued early last month, is in many ways an excellent document, particularly in its understanding of the importance of the 'moral requirement .. to uphold fundamental human rights' and in its reminder that the 'Catholic Church utterly condemns all forms of unjust discrimination, violence, harassment or abuse directed against people who are homosexual'. It correctly identifies the 'relevant question' as being 'whether what the government is proposing is necessary to defend the fundamental rights of people who are homosexual' and its answer is couched in such terms as to make the overall document read in a way that is both less hostile and more open-minded than its negative judgment of the proposal, viewed in isolation, would otherwise suggest. I do not believe that within the hierarchical structure of the Catholic Church any conference of local bishops could have done more. For of course, unlike other submissions the Government will be receiving on this issue, the Bishops' paper comes from a group of men who belong to an international organisation famous in recent years for the centralisation of its authority. We are back where we started with the contrast between the Church at the centre and Church in pastoral action. The paper put out during the Summer on same-sex partnerships by Congregation For the Doctrine of the Faith had a very different tone and style to that of the local bishops. The requirements of human rights and of the common good are there not matters for debate but rather for declamation. The right way to think, on these and on other issues, does not emerge out of a process of what Celia Gardener called 'social change' or out of any kind of open discussion; rather what we are to think is handed down to us by the Prefect Cardinal Ratzinger and his Secretary Archbishop Amato. The document reads like a passing shout from a mediaeval library whose occupants have been miraculously preserved for centuries but denied all access to the world outside. (Though I think that even in mediaeval times this document would have been considered antiquated.) The disconnection between the Vatican's and the modern world's perspective on human rights is clear from this document, but is also evident if we take a moment to reflect on how well the Church does in delivering on the three core principles that I earlier said are at the heart of what the secular world means today by the phrase ,human rights'. For present purposes we can gloss over legality, whilst noting in passing the very great concerns that are frequently expressed about the lack of due process afforded to priests and other Church functionaries ≠ a subject on which I do not know sufficient to comment. But consider the Church's attitude to democracy. Of course it would be asking too much to look for a fully democratic Church, but one which lives by the spirit of Vatican II and which allows its perspective on the world to flow out of a mature dialogue between the leadership and its own faith community is surely not too much to expect. Instead, not only is democracy wrong within the Church, it is also ≠ it would seem - unacceptable outside ≠ the most remarkable feature of Cardinal Ratzinger's Summer paper was its command to Catholic politicians to obey him and vote against any measures that were proposed anywhere to recognise same-sex unions. The image here that cannot help but come to my mind is that of a defeated leader in some bunker or other moving into the front line battalions of troops that do not in fact exist. It would surely be a useful exercise for the Cardinal if he were to meet with some of the voters who have elected the politicians that he asserts should now be accountable to him rather than them. Out of the democratic deficiencies of the Church in both its internal and external face flows a failure fully to protect and vindicate human dignity. Shorn of the dynamic quality that as we have seen democracy gives to the content of human rights, in the hands of the Church the subject staggers into a dead-end. Only those parts of the person that have already been seen in earlier generations are given recognition ≠ so we have the right to life, the right to work, the right to found a family and so on. But the richer aspects of human personality which the secular language of human rights has embraced ≠ rooted in gender, in sexual identity, the right in certain circumstances to die ≠ are resolutely ignored. In the end, therefore, I think that, despite appearances, the Church is not so much hypocritical on the issue of human rights, as - through an institutional malfunction - institutionally blinkered in its approach to the subject. The human rights movement is in many ways a visibility project: each generation seeks to see and therefore to respect more of the person before them, more of their attributes, more of their needs and the demands of their identity. With this greater sight comes a more civilised society, with more of us able to lead richer lives more of the time, unafflicted by unnecessary suffering and free from pointless cruelty. Frozen in time and with no effective mechanism for change, the Church sees only part of the person and ≠ partly through fear and ignorance; partly through institutional paralysis ≠ condemns the rest. The challenge for the future is to expand the vision of the Church, just as earlier generations of activists persuaded the state that slaves mattered, that children mattered, that women mattered. This can only happen, in my view, if the structures of the Church are made more open, and if ≠ in the field we are discussing ≠ the content of human rights flows out of dialogue rather than being filled by declamation. Not democracy perhaps, but something resembling a democratic process is required. Of course the secular world has much to learn from the Church's perspective on human dignity; the Bishop's submission on same-sex couples makes this crystal clear. There will be an extraordinary series of challenges and therefore opportunities for powerful input in the future, on transsexual rights, on gene technology, on euthanasia, the list is endless. All of us ≠ whether religiously inclined or secular ≠ are in need of ethical guidance, and know we are. But to engage effectively, the Church has to be willing to contemplate a dialogue between adults, a conversation not a sermon. This openness has to involve a reaching down through the Church and a reaching out to other centres of ethical excellence, whether they be secular or faith-based. The true enemy today is not secular society, but irrational, exclusive religious fundamentalism ≠ of whatever variety ≠ Christian, Zionist, Hindu or Islamic. That is not an enemy that can be fought effectively by a divided Church, of any denomination. Let me end on a note that many of you might regard as irrationally optimistic: I believe that viewed as a whole the Roman Catholic Church is much closer to broadening its perception of what it is to be human than many believe: the great virtue of an authoritarian structure is that when change is decided upon, it can happen very quickly!
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