As a result, they came to think of themselves in a much more political way. When the Labour government came to power in 1997, it made a seminal mistake. Instead of putting the judges firmly back in their box, it entrenched judicial activism by incorporating the Human Rights Convention into English law. Bringing human rights law home in this way did much more than repatriate it and make it binding on the English courts. It galvanized special interest groups to make demands on the grounds that these were “rights” enshrined in law, created a burgeoning industry of human rights lawyers and—despite acknowledging the ultimate supremacy of Parliament—effectively transferred much political power from Parliament to the courts.
For New Labour, the issue of human rights was as totemic as state control of the economy had been for its Old Labour predecessors. With the collapse of socialism, Blairite politicians—like left-wingers everywhere—had to find a new radical motif that would enable them to continue their defining mission to transform society and human nature. Human rights provided the perfect vehicle.
The Human Rights Convention was originally conceived in another era altogether. Drafted in the wake of World War II, it was an attempt to lay down a set of principles to ensure that totalitarianism would never deface Europe again. It has now mutated into something very different. Far from protecting European civilization, it has turned into its potential nemesis.
In the shadow of fascism and Stalinism, its original aim was to protect the individual from the state. But in the half-century that has since elapsed, the relationship between the individual and the state has fundamentally changed. The emergence of a culture of hyper-individualism gave rise to a radical egalitarianism of lifestyles and values. Morality was privatized, and all constraints of religion, tradition or cultural taboos came to be seen as an attack on personal autonomy.
Where previously ties of obligation had bound individuals to each other and to the state, the new culture of entitlement imposed instead an obligation on the state to deliver individual demands that were presented as rights. Since radical egalitarianism meant that all lifestyles were of equal value, the very notion of a majority culture or normative rules of behavior became suspect as innately exclusive, prejudiced or oppressive. Moral judgments between different lifestyles or behavior became discrimination; and prejudice, the term for discrimination between lifestyles, became the sin that obviated the moral codes at the heart of Judaism and Christianity, which had formed the bedrock of Western civilization.
All minorities thus became a victim class to be championed. The nation itself became suspect, since it was the embodiment of a majority identity that by definition treated minorities as lower in the cultural hierarchy. So the idea of a nation that represents and protects individual citizens on the basis that they all subscribe equally to an overarching identity and set of values came to be replaced as the key political driver by interest groups defined by race, religion, ethnicity, gender or other existential categories.
The values of the dominant culture thus had to be replaced by the perspectives of the self-designated victim groups. Democracy became effectively redefined from majority rule among equal citizens to power-sharing among ethnic and other interest groups. Multiculturalism became the orthodoxy of the day, along with nonjudgmentalism and lifestyle choice. The only taboo now was the expression of normative majority values such as monogamy, heterosexuality, Christianity or Britishness. Because these were rooted in the particular, they were by definition discriminatory. The only legitimate values were now universal, detached from particulars such as religion, tradition or nation.
So the nation-state itself came to be seen as past its sell-by date, an anachronism responsible for all the ills of the world such as racism, prejudice and war. The remedy was what has been termed “transnational progressivism,”5 the idea that what we must all sign up to transcends national boundaries. Laws based on the values, traditions and histories of particular nation-states must be replaced by laws and delivery mechanisms that are universal. So international law trumps the political decisions of sovereign states, and human rights law trumps their values.
These supranational laws and values are imposed by supranational institutions such as the European Court of Human Rights, the European Union, the United Nations or the European Court of Justice, which increasingly are becoming the sole sources of legitimacy. Indeed, law itself now trumps other forms of human interaction such as, at one end of the spectrum, informal relationships based on custom or convention and, at the other end, defending liberty through war. Instead, the view took hold that the application of law would settle all the world’s problems and conflicts. It was law that by regulating behavior and attitudes would bring about a new and uplifted universal psyche. Codifying principles to which all civilized people could sign up would, it was thought, eradicate hatred, impose global order and remove any occasion for war. Indeed, law would now trump war. To paraphrase Winston Churchill, it seems that law-law is always better than war-war.
This legal supremacism has now developed into an industry that threatens to usurp the democratic process itself. Instead of being governed by the rule of law, we increasingly have rule by lawyers. Instead of being the vehicle to convey a nation’s values, law has increasingly become a moral end in itself.
Accordingly, English common law is being steadily eroded by the encroachment of European law, on the basis that these distinctions no longer matter because we are all now bound by universal legal principles that brook no opposition. But they do matter. European law is deeply foreign to the tradition of English common law, which is founded on the premise that everything is permitted unless it is expressly forbidden. This is the very basis of English liberty. But European law, which is now taking precedence, presupposes instead that whatever is acceptable has to be expressly codified and permitted. The result is that, far from enhancing liberty, human rights law is a key mechanism for those who want to force people to conform to highly subjective notions of how to behave.
These developments are based on the elevation of law to a doctrine of legal infallibility. The law itself has become a kind of secular religion, with lawyers acting as the new priesthood. As a result, governments and other public authorities now look to lawyers to bestow or withhold their blessing on their deeds.
But rule by lawyers is based on assumptions as flawed as they are dangerous. International law, for example, is of dubious authority since it is not rooted in any democratic jurisdiction. It is merely an expression of prevalent political or ideological views, which are subject to disagreement. Some of the judges in supranational courts have not been judges in their own countries, or are not even lawyers but diplomats; and their deliberations are inseparable from political maneuvering. The legal tail is now wagging the national dog. The widespread opposition to the Iraq war in the British legal world seemed to be motivated by a fundamental outrage that it took place despite the absence of consent by international lawyers, which in itself made it an illegitimate exercise. But the idea that no prime minister can take the action he considers necessary to defend his country unless international lawyers give him permission is preposterous.
Judicial universalism supersedes the nation and represents a direct attack on democracy, on the ability of individual nations to express their own traditions and cultural preferences through their own laws. The argument is that no one could possibly object to the values conferred by human rights law because they are universal; that the judiciary are the custodians of these universal values; and so if politicians take actions to which the judiciary object on the grounds that they conflict with these universal laws, such politicians are acting in a tyrannical and despotic manner.
Thus one of Britain’s most important judges, Lord Bingham, a senior law lord, said it was a “complete misunderstanding” for people to suggest “that the judges in some way seek to impede or frustrate the conduct of government.” The judges were simply “auditors of legality,” who quashed government decisions from time to time beca
use they were contrary to law, not because the judges happened to disagree with them.6
But law is not, as Lord Bingham implied, immutable. Laws depend on interpretation by the courts. Far from providing certainty, law is a battleground of contestable viewpoints where victory may depend on highly subjective judgments. And nowhere are these judgments more subjective and contestable than under human rights law. Unlike national laws, which require the courts to interpret the intentions of the parliaments that passed them, human rights law requires the courts to arbitrate between the competing principles of the Human Rights Convention, in which the vast majority of rights are balanced by their exception. So by definition, these “rights” are not universal at all. On the contrary, they are highly contingent, dependent on the opinion, prejudices or whims of the judges who are called upon to arbitrate between them. And these are deeply divisive issues—which means the judges inevitably stray into territory that is properly the province of politicians, elected by and responsive to public opinion.
An example of this was provided by Lady Hale, who upon becoming Britain’s first female law lord—equivalent to a justice of the U.S. Supreme Court—gave a press conference. She was in favor, she said, of gay adoption, legally recognized gay partnerships and improved legal rights for heterosexual cohabitants, and she wanted to see the concept of fault removed from divorce law. These issues, which are among the most divisive in our society, are all political topics. They are the subject of heated debate in Parliament and among the general public. The notion that one of England’s most senior judges, supposedly the acme of impartiality, should have proclaimed her views like this suggested that any cases she heard on these topics would be prejudged by an ideological agenda.
That agenda, moreover, far from embodying universal values, represents a direct and deadly attack on the normative values of family life that underpin British society. It is, nevertheless, the agenda of a significant section of England’s judiciary. These are judges who either are terrified of being thought “out of touch” with modern life or, having never grown out of the sixties counterculture when they came to maturity, have whole-heartedly embraced the obnoxious “victim culture” that gives unchallenged preference to minorities, however they behave, at the expense of the majority, who are deemed to “oppress” them.
This was explicitly justified by Lord Bingham when he said that the Human Rights Convention, which existed to protect vulnerable minorities who were sometimes disliked, resented or despised, was an “intrinsically counter-majoritarian” instrument. It should come as no surprise, he added, that decisions vindicating their rights “should provoke howls of criticism by politicians and the mass media. They generally reflect majority opinion.”7
So majority opinion, it seems, is essentially illegitimate, and the role of the judiciary is to use human rights law to override it. This unashamed justification of judicial supremacism is as antidemocratic, subversive and unjust as it is arrogant. It does not allow for wrongdoing by any “disliked, resented or despised” minority, but presupposes that it is in the right simply by virtue of being such a minority.
This view is based on the doctrine of moral equivalence, which has redefined equality as “identicality” in a secular universe of—in the pungent phrase of the writer David Selbourne—“dutiless rights.”8 It is duty and obligation that forge a community; rights detached from obligations fragment a society into competing interest groups fighting each other for supremacy. The only duties recognized by the rights agenda are the obligations on the state to deliver group rights. The individual claimant is liberated from obligations to the state, to convention or to other individuals in the cause of his own unchallengeable autonomy.
Human rights doctrine is thus the principal cultural weapon to undermine the fundamental values of Western society—with an activist judiciary turned into culture warriors, marching behind the banner of militant secularism. As the human rights activist Francesca Klug boasted in her book Values for a Godless Age, “Human rights are now probably as significant as the Bible has been in shaping modern western values.”9 The result of this judicial activism is an increasing breakdown of social, legal and moral conventions by unelected, unaccountable judges. In some cases, they have unilaterally challenged moral norms without public opinion even being consulted, and have undermined concepts such as family life, truth, social order, citizenship and law itself.
Three examples:
• In 1999, the law lords ruled that gay tenants should have the same rights under the Rent Acts as married couples and blood relatives. This in turn followed remarks by the leading family judge Dame Elizabeth Butler-Sloss that it was acceptable for gay couples to adopt children. Asked about such judicial liberalism, the then Lord Chief Justice Bingham said it was important for the law to “keep in touch with changing social attitudes.”
Yet his assumption that the judges were simply reflecting cultural change was wrong. Tolerance of homosexuality and sympathy for a gay man who has faithfully cared for his sick partner are one thing. The law lords’ decision, though, went much further than that and effectively redefined the family. According to Lord Slynn, the leading judge in the case, “family” need not mean either marriage or blood relationship. If “family” is defined, as he suggested, merely by love, care and attachment, it would appear that two devoted elderly spinsters would also be defined as “family.” Is this really the judiciary merely “auditing legality”—or using the law to reshape society?
• The Court of Appeal ruled that gypsy families who had moved onto land they bought in Chichester, West Sussex, in open defiance of the planning laws should be allowed to stay because human rights law gave them “the right to family life.” The ruling effectively gave the green light for illegal gypsy camps the length and breadth of the land to become legally untouchable, in flagrant breach of the planning laws. It thus legitimized widespread lawbreaking.
How can unlawful behavior suddenly be deemed lawful, even though the law that prohibits it is still on the statute book? The answer is that the Human Rights Act has become the law that subverts the rule of law itself. When Parliament incorporated the European Convention on Human Rights into English law, the public were reassured that the courts would not be able to strike down acts of Parliament if these were judged to be in conflict with human rights law. But this case showed that the Human Rights Act can trump other legislation. So the courts can simply push aside laws such as planning controls as if they didn’t exist.
Although a subsequent ruling by the Law Lords in 2006 upheld the eviction of a gypsy family on the grounds that they had not established sufficient links with the place for it to be considered their home,10 the earlier Chichester ruling destroyed the compact at the very heart of citizenship—the guarantee that there is equality for all under the law. Instead, the judges decided that for certain favored groups, they may waive the legal requirements that apply to the rest of us. All citizens have rights—but minorities, it appears, have more rights than others.
• The Gender Recognition Act was passed to conform with a ruling by the European Court of Human Rights. This ruling laid down that a transsexual had the right to claim that his or her gender at birth was whatever he or she now deemed it to be, as agreed by a panel of experts.
The act accordingly gave transsexuals the right to a birth certificate that does not record the actual gender into which they were born, but states instead that they were born in the gender that they now choose to be. While the plight of transsexual identity obviously deserves sympathy, this means that their birth certificate—the most basic guarantee that we are who we say we are—will be a lie. It means that someone who was born a man, married as a man and fathered children as a man will have a birth certificate, if he so chooses, that says he was born a female.
Worse still, a wide variety of people will be prosecuted if they make known the truth. Suppose a fitness club advertises for a personal trainer and takes up a reference at another gym for an applicant named Barbara.
If that gym’s owner employed this person as Barry, it will be a criminal offense for him to say so. So he may be forced to tell misleading half-truths about “Barbara’s” performance. If a woman becomes a man, “he” nevertheless remains the mother of his (her?) children. Similarly, a man remains the father of his children and is therefore still liable for child support—even though his birth certificate might say he was born female. Such are the absurd and unjust contortions that result from a legislated lie—a lie brought into being as a direct result of judge-made human rights law.
Such law is also turning social order on its head along with the concepts of right and wrong. Two more examples:
• In 2002 an elderly street preacher, Harry Hammond, was fined £300 for displaying a placard that said: “Stop immorality. Stop homosexuality. Stop lesbianism.” He had been surrounded by a group of thirty to forty people who had thrown dirt at him and poured water over his head. Despite the fact that he had been assaulted, he was the one who was prosecuted. His conviction was upheld by Appeal Court judges who said his behavior “went beyond legitimate protest” because it had provoked disorder. So causing offense, it seems, is now a crime while assault is not—because the anti-majoritarian position is deemed inviolable and beyond criticism. Was this “auditing legality”—or redefining it?
• The government’s drive against yob culture includes the imposition of antisocial behavior regulations, which may impose nighttime curfews for young people or order them to stop wearing hooded tops that obscure their faces from CCTV cameras. The High Court ruled in one case that forcibly removing a youth from a curfew zone breached his human rights; apparently the police could only ask him to leave. And in another case, it ruled that the ban on a boy’s hooded top was illegal after his lawyers argued that it was “a breach of his right to personal development.” “Auditing legality”—or defying common sense?
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