Squaring a Human Rights Circle

There used to be a sign on Paris Metro trains designating a particular seat for the use of people with special needs of seating. This being France, it had its own legal hierarchy, including, if I remember correctly war wounded, blind people, and pregnant women. I used to wonder if wild fights ever broke out between old blessés de guerre from 1914 and pregnant blind women over who took priority and why. The thought is ridiculous.

But that is how some see human rights legislation. It’s understandable because if people take human rights cases to court there can be involve a notional process that feels like that, applied with what's called proportionality.

I play the Euphonium to express myself. My next door neighbour wants to sleep at night. If legal push comes to shove an accommodation has to be reached between us. It spoils the story perhaps, but this probably will not involve either banning all Euphonium playing for all time, or absoutizing the right to express oneself in this way so as to banish sleep for ever from those living next to euphonium players. Proportionality looks for a practical way of respecting both rights (privacy and self-expression) simultaneously.

So what about religious particularity and freedom from discrimination? Pushed to an absolute degree either could compromise the other. If an atheist could fight a way through the courts to become Pope that would be a magnificent expression of openness, but bad news for the Papacy, which partly exists to define and maintain a particular identity in a way that can only credibly be done by a Roman Catholic. If, conversely, a Police force decided to soft pedal on the misdeeds of some clergy because they are authority figures in the community representing the dominant religion, this is plainly wrong and deprives the victims of a basic justice they have every right to expect.

This becomes even more complicated when people start asserting Christian rights. Jesus' teaching about non violent resistance (turning the other cheek etc) and the strand of wisdom represented by Romans 13, does not lend itself to crusading militancy. Whenever the Church has ignored this principle it has made a fool of itself and compromised the gospel by behaving in a violent and assertive way to whch it might notionally have been entitled, but which was far from Christlike. People who are being reviled have a notional right to revile back, perhaps, but Jesus tells his followers to do the exact opposite. This being the case it is hard to represent an assertion of that right as something required of his followers by their religon. It damn well is not.

A few preliminary jottings are emerging for me about the ways christians are supposed to apply human rights law to ourselves.

1. Everything is contextual, sociologically and legally, but discriminatory is as discriminatory does. It is no defence to say “I don’t consider my behaviour to be so,” “We’ve always done this” or ”God told us to do it.” God told slavers they could hold slaves, using clear and obvious Bible passages to do so. But they were wrong. Moral absolutes do emerge and become increasingly apparent contextually because there is a Holy Spirit. Religious groups are not immune, any more than the Scribes and Pharisees were, from moral critique just because they are religious groups.
   
   
2. Any religion has a core of beliefs and practices — Kosher food, Holy Communion, Pilgrimage to Mecca. These practices characteristically bind believers but not non-believers and are part of the distinctiveness of the religion. People have a greater right to bind themselves to these than to impose them on others. As to whether a religious practice is good or bad, by their fruits ye shall know them.
   
   
3. All sorts of lifestyle choices may emerge from religon as moral choices, like pacifism or vegetarianism. Where significant numbers of believers within a religion take different views that is part of how all religious communities evolve, and all we can say is that such subsidiary moral convictions are to be respected as far as possible, but cannot be rolled up into the religion as though they are a core part of it. Their motives may be, but they are not. It is deceitful to suggest otherwise.
   
   
4. I cannot, as a Christian, evade the force of the Golden Rule and Jesus’ summary of the law as core components of Christianity. Against such there can be no law. According to others the positive radical respect, or love, that you would hope for but cannot require from them is a significant absolute requirement. It is hard to square with any attitude which defines them in a way they do not recognise — behaviour which leads to the sin of the Pharisees who bound burdens on others that they themselves could not have borne had they been applied to them. Human rights law is more a matter of “not doing unto others what you would not have them do to you,” but a Church which does not even aspire to manage the lesser standard can hardly represent the greater one.
   
   
5. Christianity has its own absolute principle of Incarnation — that God takes flesh. Therefore dualism about the wicked world is questionable from a Christian point of view. The trick, to quote a Lent Eucharistic prayer, is to find a way to live in this passing world with our hearts set on a world that will never end. The calling is to be entirely within the world but distinctive, as goldfish are wet, 98% water indeed, without ceasing to be goldfish. How to express this calling is a $64,000 plus question which Christians should vigorously discuss but defer to each other about wherever possible because, important as it is, it cannot be an exact science. This is not done not by fixating on any particular behaviour that is held to be counter cultural. Rather it is best done by refusing to absolutise any particular cultural behaviour, ancient or modern, so as to leave room for the greater principle to express itself circumstantially in an authentic way. I am particularly suspicious of temporal certainties being absolutized in the fields of economicas or personal morality.

I wonder what I’ve missed or misrepresented?

Munchausen loses Court Case

Having penned a little piece in the Guardian about the Johns Case, reactions have ranged from nutter denunciations to thanks for saying what everybody felt but hadn’t got round to saying. Actually, the realities of this case were extraordinarily simple, summarized thus by the judge:

the views that Mr Diamond seeks to impute to others have no part in the thinking of either the defendant or the court. No one is asserting that Christians (or, for that matter, Jews or Muslims) are not 'fit and proper' persons to foster or adopt. No one is contending for a blanket ban. No one is seeking to de-legitimise Christianity or any other faith or belief. No one is seeking to force Christians or adherents of other faiths into the closet. No one is asserting that the claimants are bigots. No one is seeking to give Christians, Jews or Muslims or, indeed, peoples of any faith, a second class status. On the contrary, it is fundamental to our law, to our polity and to our way of life, that everyone is equal: equal before the law and equal as a human being endowed with reason and entitled to dignity and respect.

So...

You may think everybody is out to persecute your religion, but you can only get a court to stop them, if there is any evidence that could give substance to your fears. It is perfectly lawful in the UK to suffer real fear about religious discrimination. It does actually happen and may indeed happen to you. What you cannot expect is the blanket protection of a court against a specific instance of it without evidence that it has happened or is likely to happen to you.

Premature burial is a dreadful thing. Before a Court will injunct a local authority against doing this to you they will require some evidence that it is likely to, or indeed that you are dead in the first place. Since nobody brought any evidence in this case, the result can hardly surprise anybody.

What have we learnt?

1. Courts don't make law, parliament does. Well, wasn’t that a surpise?
   
   
2. If you require protection against an imaginary threat, go to an imaginary court. Using real courts as grandstands, an essential part of the lexicon of US Culture warriors of the Right, is still, understandably, frowned upon by English judges, who are busy bunnies.
   
   
3. The conflation of a moral view held by a particular section of Christians into a banket phenomenon called “Christianity” that is then adjudged to be under threat doesn’t wash. It’s rubbish. Some Christians, for example, are profoundly sincere pacifists. In stark contrast to anti-gay campaigners, Christian pacifists could claim some sanction for their view from the teaching of Jesus. That doesn’t, however, make pacifism integral to Christianity, such that any court that refused to order the Grenadier Guards to lay down their arms could be held to be attacking Christianity.
   

Ah, but you may say, there are people out there who don’t like Christianity. There are, and there always were. Some English Christians seem hell bent on behaving like a persecuted minority, and who am I to try and stop them? They’ve obviously never been to Pakistan or anywhere else Christians really are persecuted as Christians.

Historic Christianity does have massive historic, cultural and legal influence in the UK, not least in the pursuit of ancient rights founded on the principles of Equity that gave rise to our human rights law in the first place. The surest way to destroy this influence is for a group of zealots to take upon themselves the role of being the “one prophet left,” and indulge in the legal equivalent of Munchausen’s Syndrome by Proxy.

Human Rights Relativity

In a week which has seen all kinds of positive and negative comment about bishops, the Pope and Human Rights legislation stumbling through the House of Lords just now, I think we need to stand back and consider what human rights are and what they aren’t.

Civilised people need to have some way of measuring standards of behaviour that translates across culture from one context to another, indicating possible abuse. Clear Human Rights legislation is a good way for civil society to express some shared values, and measure where behaviour falls short. Pulling the whole ragbag of legislation from the past forty years together into a coherent whole is obviously a Good Thing Too. So far, so good.

But which Human Rights? How? More partcularly, how do you balance them? Human Rights are usually framed in terms of a Big Social Good, and this makes them seem like absolutes, which of course they can never really be.

Translating high ideals into the down and dirty world of Monday morning, where stuff happens, is an inexact science.

All Human Rights however idealistically framed, always need to be qualified, both by the constraints of reality, and other human rights. This is the nature of freedom arguments — my freedom to express who I am by practising my Euphonium is qualified by your right to a good night’s sleep. However excellent each notional right may be in the abstract, either, pushed to its logical extreme in the real world would cancel out the other.

So to current concerns. Equality and Diversity are both really good things, in the abstract. That means Discrimination and Homogenization are really bad things, in the abstract. Now try and apply that lot, and make laws to universalise the deal, and you will need to make a few cute calls. Doesn't mean it shouldn’t be done, just that it’ll be messy. Discussion along the way to deciding how to word equality legislation needs to be robust and realistic, not knee-jerk and generalised.

Every position has to be proofed against some other positive right, or the result will almost certainly be abusive.

That being the case slanging matches about whether Human Rights are a Good Thing or a Bad Thing are futile and childish. The Pope, left wing right wing, whatever, anyone has as much right as anyone else to express a serious point of view about the way the balance between Equality and Liberty looks as though it’s being struck in the UK.

The liberty of the individual to believe or not as they judge right, like the liberty of the individual to be treated fairly, are both precious things that can only be preserved if we are willing to give serous attention to working out how they relate to each other. One lot may have to swallow the uncongenial truth that the extent to which any of its people accepts any organisation’s dogma is ultimately voluntary not legally enforceable, and the other the equally uncongenial truth that illiberal liberalism is an Oxymoron.

Judging Clergy misconduct

An HR day out in London training for the implementation of Common Tenure, and an Ecclesiastical Law Society meeting at Lincoln’s Inn, which included a characteristically wise, just and humane presentation by Sir John Mummery, Lord Justice of Appeal, President of the Council of Inns of Court and Chair of Tribunals appointed under the Clergy Discipline Measure 2003. Sir John came to this work with considerable experience of appeals and disciplinary procedures in the legal profession having in the 1990’s headed various tribunals relating to employment appeals, the security services and investigatory powers.

CDM 2003 came into force in 2006, replacing a costly and obscure hotch-potch that had evolved down the years for complaints about the clergy in matters other than worship or doctrine. Some 22,000 people are subject to it. The 2009 report is due out soon, but in 2008 there were 69 formal complaints about their behaviour, 65% of them from ordinary members of the public rather than archdeacons or churchwardens. 3 were referred to tribunal, all of them resulting in a finding of guilt.

CDM is the only mechanism for dealing with clergy professional misconduct or abuse of trust and office, and anyone can access it by simply downloading the forms from the internet, complete with guidance notes (here). Transparency and fairness are paramount, though not everyone involved will always agree they have been served perfectly because, frankly, they aren’t aways. All legal procedures need to be subject to continuous vigilance and improvement to serve justice the way they are designed to. The system doesn’t deliver in and of itself. People operating the system try to.

CDM is emphatically NOT:

• for questions of doctrine or ceremony, which are provided for in other ways more appropriate to the complexity of the subject and the ancient liberties of the clergy
  
  
• a mechanism for grumpy people or bullies to attack clergy they don’t like. There are safeguards and rules of evidence for everyone built into it to prevent not only abuse of office by clergy but also abuse of the legal system by compainants. If the people soncerned agree to be reconciled the system encourages this, but if they require their day in court, this is where they get it. They have the right to decide.
  
  
• what HR people call a capabiity procedure — a way of getting individual clergy to raise their games. Among other places, capability’s being worked out in the new terms and conditions of service guidelines going to General Synod next month, not CDM.
  
  
• a mechanism for preventing pastoral breakdown. Indeed if there has been a breakdown of relationships going to court usually just winds things up and raises the stakes. Everyone can come out of it more cross than they went in. This is coercive and disciplinary, not a substitute for honest communication and relational gitches. Jesus taught the wisdom of dealing with relationahl matters directly and honestly, and being sparing about court proceedings.
  
  
• a way of preventing anyone (especially bishops) dong anything. There are good procedural reasons why in the early stages, if there is possibility of it being used, bishops need to protect complainants, complainees, and themselves by not weighing in and fouling the procedures up, but especially if no finding of guilt is made (as in the majority of cases) that emphatically does not mean there is nothing to be done — the so-called “Black Hole problem.” You can do all sorts of things with people apart from sacking them and depriving them of their homes, indeed in the vast majority of cases something else will probably turn out in the end to be the right thing to do.
  
  
• The question of parallel proceedings needs to be worked out carefully case by case, but CDM is not in any way a substitute for criminal or civil proceedings, or a gratuitous supplement to them in order to make them especially nasty for members of the clergy.
  

CDM Is a way of punshing serious misconduct, that is specific provable blameworthy behaviour that would lose your your job in any other line of work. Like all legal decisions, it is a matter of fact and degree. The system also aims to prevent repeat occurrences, and deter others.

Therefore actions for changing service times, parking in a disabled bay, sunbathing in your back garden (whence the complainant had to stand on tiptoe to see you), and “looking at someone in a funny way” (all of which have been atempted) are unlikely to succeed. Complaints about inappropriate relationships, improper management of Church funds, and anything damaging the welfare of a minor, if proved, are far more likely to result in findings.

Like any legal system it is and should be, as it seems to be, wide open to learning about its own shortcomings, constantly seeking to improve its capacity to deliver justice. The attitude is “Every day I learn something I didn’t know before and am often surprised I didn’t know before.” It’s prosection not persecution. It’s designed to help everyone as much as legal proceedings can help everyone (which is not always and everywhere possible). I was encouraged to find that it is served, with great humility and realism, by one of the finest and most experienced legal practitioners in the country. That’s good news for everyone.

Assisted Suicide and the Law

Statutes are crude, basic means of laying out the ground and protecting people’s basic rights. The ways they are interpreted and applied is where the action is. Remember the dangerous dogs act? It was going to stop dogs killing children, a laudable plan, but proved almost impossible to apply in practice. The devil is in the detail. Hard cases make bad laws, and one person's sensible relief is another's death warrant.

To know that in principle the law, whilst not criminalising suicide, protects life pretty absolutely, is surely no bad thing. As long as it is applied with compassion, it is surely better to know you will have to justify, formally and case-by-case, taking a life, rather than saving it. Death is the exception not the norm.

My mother suffered from dementia, which came with extended episodes of depression, over four very difficult years before her death in 1994. We did what I imagine any family would do — sold her house, and used the money to pay for the very best care for her; which towards the end was pretty total. Yet there were, even late on, some moments of comparative lucidity and even flashes of joy. Although in her depression she sometimes asked insistently to be put down, it helped and protected everyone to know that this was not really an option. Her condition was sometimes extremely challenging for her, her carers, and the family, along with me and my power of attorney. To add to the mix a legal right to assisted suicide would have made it a complete and utter bloody nightmare. And imagine what legislation must also cover, circumstances where there was less goodwill in the family, with several hundred thousand pounds riding on a decision to terminate a.s.a.p. More tea, Dr Shipman?

The fact that this is so extraordinarily complicated an area in which to legislate shouldn’t make it entirely impossible, but it involves thin ice, which it wouldn’t be wise to skate over. This is big life and death stuff, which has to stand up and protect the weak in millions of circumstances far less extreme and unusual than those on which the media is majoring just now. We need to pick our rut carefully. We may be in it for a long time.

Abdul the Bogeyman

White heat Brouhaha over the Archishop of Canterbury and Muslim Law. You wouldn't think a densely packed academic law lecture would be much good for soundbites, particularly given general public ignorance about jurisprudence theory. You’d be right. One of the few things less understood in Fleet Street than jurisprudence is religion. Ignorance plus Hysteria equals juicy heat. Among the commentators, Andrew Brown hits the nail precisely on the head:

Dr Williams, characteristically, is interested in the arguments over what sharia law actually says. The rest of the country is more interested in whether and how it might be enforced. Only if Islamic law can be reduced to a game played between consenting adults can it be acceptably enforced in this country; and that's not, I think, how it is understood by its practitioners.

English law is a funny old thing. Its very purpose is unclear — For fifty years there’s been a fascinating row (known in the trade as Hart/ Devlin), about whether English law is designed to secure minimal social cohesion (Hart) or enforce morals (Devlin). At the time of Roman Catholic emancipation back in 1829 we experienced big social hysteria about how people who theoretically owe allegiance to other systems of law could be completely part of English society. We've pretty much managed to work that one out — the whole idea that Roman Catholics are a sinister fifth column is just wrong, though this crazy notion has deep roots in English history. Loyal is as loyal does. Within the overarching framework of monarchy we’re all still here, and the deep fried hysteria from 1780 (the Gordon riots) or 1685 (the Popish Plot) seems, frankly, potty. From this we learn that the English sometimes do hysterical kneejerks. Best check that the bogeymen really are bogeymen. In a country containing people who don’t know the difference between a paediatrician and a paedophile, this is particularly important.

Fast forward. Muslims, in fact, represent 3% of the UK population. In the cold light of day, fear that Bearded Ayatollahs are about to march up Whitehall and Take Power is utterly ridiculous. It’s particularly babyish when you remember 99% of actual British Muslims live decent, law abiding lives, according to rather conservative standards of family life. Forget that fact, and we make big fools of ourselves. Muslims know the UK is not a Muslim nation, and don't either expect or want it to be. They just expect basic standards of decency and respect towards their faith; which they are entitled to do, because decency and respect are values we all profess, secured by basic charters of human rights.

Are there other areas of UK life where the rule of law is apparently compromised or even suspended? In theory, no. The Queen’s writ runs throughout the realm, and that is a basic principle that secures civil society. But in practice, English law is sensibly pragmatic. Take a boxing match, a lawful activity, as long as the (non statutory, private) Board of Control rules are followed. This always involves acts which would otherwise be considered Common assault contrary to section 39 of the Criminal Justice Act 1988. Particularly bloody rumbles in the jungle would also appear to contravene section 47 of the Act, by occasioning actual bodily harm (ABH). There’s a fascinating wavy line here, and assault cases have been successfully brought arising from incidents on the rugby field. Does that mean sports arenas are “no go areas” for the law? Of course not. In all kinds of areas of life, simple and obvious requirements of general law are, if you like, superseded in a particular context. Sensible pragmatism, common sense, sorts it all out. In a well-worn groove like sports, we know instinctively where to go and how. In virgin forest like Sharia law, we don’t.

Now consider a Jewish couple divorcing. Their faith lays down legalistic procedures for interpreting their behaviour towards one another. If they chose to bring evidence or decisions from those procedures into civil courts in the UK, they will, of course, be taken into account for what they are. This isn’t replacing the law by Jewish law, just sensible pragmatism within the overarching framework of the Queen’s justice. In the same way, 18th century marriage law made provision for Quaker marriage. If religious procedures were to transgress the law, or deprive either party of equity, of course, the rule of law and the principles of equity would apply. Hysteria about Bogeymen is a great British Tradition. It gets people talking. But when they do, historically, they usually talk rubbish.

It’s pronounced Frunken-steen

Forty years today, since the passing of the 1967 Abortion Act . Do we celebrate? The act put a stop to the old back street abortions of the 50’s, but its original framer, David Steel, is concerned about numbers way beyond what was intended. The context, sociologically and obstetrically, is radically different from 1967. There's a weird number crunch about how many desperate infertile couples there are in the UK and how many aborted foetuses. Given all the other options available, are people really using abortion as a form of contraception, or even to avoid babies with cosmetic imperfections?

Polly Toynbee’s Guardian rant gushes superficially like an Austin Powers movie about choice as the ultimate right. OK, but back on planet earth, why do you have to be alone when you choose, what are you really choosing, what’s the personal cost, and how do you choose? In defence of the present law, Rowan Pelling’s heartfelt words in the Telegraph are compassionate, personal and much more real. The kind of hard cases she mentions have moral significance, and she understands how questionable any trend towards aborting babies for cosmetic reasons is, if that’s happening.

As a pastor I've met some very caring, honest and courageous women, deeply conflicted, trying to work their choices out in their own circumstances, with different end results, sometimes years afterwards. It wasn’t easy for them. Surely ‘Good Samaritan’ calling is to be there for and with people, not to go in hard and judge them. Sadly the lesser of two evils doesn't stop being evil. But, and Pelagians forget this, in Christianity Grace comes first.

Surely it matters desperately that society affirms the value of life. Personally, I'm haunted by the thought that I'm married to someone who, had she been born a generation later, would almost certainly have been aborted under the act. We never did know Lucy’s birth mother and don't want to generalise, but are grateful, every day, that in this instance, whatever it cost her, she went through with it and gave the gift of life. How can we not be?

Was there wisdom and psychological, if not biological, truth in the traditional view of “quickening” they held in the middle ages? Public law can only do so much. Perhaps what Christians can do is be there for people relationally in their particular circumstances, and support them as they work through the choices the law gives them conscientiously. Liberal ranting about choice is as destructive for this process as “every sperm is sacred” stuff from the 1960’s. Some of the inflammatory and emotive showmanship on both sides is really cruel to human beings for whom this is a personal reality as well as a general issue. Perhaps on this issue all we can do, as Paul did in first century Corinth, is, refuse to use manipulative or underhanded means, and commend Christ to the conscience of all.