Do You Know Your Rights? May 2001

Judging the common good

Simon Lee

The Human Rights Act 1998 came into force in England and Wales and in Northern Ireland last October. How will it affect church communities? Simon Lee, who is Rector and Chief Executive of Liverpool Hope University College and is Emeritus Professor of Jurisprudence at Queen's University Belfast, sees it as a challenge, 'an awesome opportunity to contribute creatively to society through the development of a new constitutional order'.

The Human Rights Act 1998 incorporates the European Convention on Human Rights, drafted in 1950, into our domestic law. The Act came into force in England and Wales and in Northern Ireland in October 2000. It has already been in force in Scotland. Church interest is often at the level of, ‘How will this help people who wish to challenge us?’ (Churches as defendants) or ‘How will it help us to challenge others?’ (the Churches as plaintiffs). It would be good, however, if we could begin by asking not what the Human Rights Act can do for us, nor what it can do us for, but what we can do for it?

My view is that the Churches and other faith communities are being presented with an awesome opportunity to contribute creatively to society through the development of a new constitutional order. The Archbishop of Westminster’s submission in the case of Jodie and Mary, the Siamese twins, is the harbinger of interventions to come. For a significant feature of human rights litigation in the USA, to give but one example, is that third parties file briefs in cases as amici curiae, friends of the court. The construction of an amicus brief, as in the case of Jodie and Mary, may not determine the result but it can take the teaching and message of a church on the particular issue to a wider public.

An amicus brief has long since been possible but it has rarely been undertaken by the Churches in this part of the world. Indeed, the Archbishop of Westminster’s submission was made a matter of days before the Human Rights Act came into force so the mind-set of intervening in cases is not conditional upon a bill of rights. None the less, it is much more likely to happen now, just as media and public interest in the appointment of judges will blossom in life after the Human Rights Act, even though some of us have always maintained that a democracy ought to be concerned about its judiciary.

The bishops’ latest statement, Vote for the Common Good, identifies a range of issues where in fact the votes of judges will be just as important as the votes of politicians in the new constitutional order. The bishops’ selection of ‘a few of the vital issues facing our society’ identifies families, human life, global poverty and injustice, asylum seekers and refugees, family members needing care, and crime and prison. We cannot yet vote for our judges but we can argue in at least two ways for courts to take decisions under the Human Rights Act in a way which respects the common good. On the one hand, we can urge the appointment of a wise and balanced court, representing all the talents of our society, and on the other, we can make submissions in the manner of the Archbishop of Westminster’s contribution to the Siamese twins’ case when, for instance, the rights of asylum seekers or prisoners are litigated, as they will increasingly be.

All the judges seemed to appreciate the five overarching moral considerations identified by Archbishop (now, Cardinal) Cormac Murphy-O’Connor. They did not agree on the application of those in English law to the circumstances of the dilemma which faced them but then I am not sure that all bishops and theologians around the world, or even the country, necessarily agreed with the Archbishop on the particular case. What is encouraging, however, is that there is now in every sense a precedent for similar contributions on matters where there has not been as much attention as in medical ethics to the teaching of the Church, such as how we as a society treat others on the margins, including prisoners and asylum seekers.

The Human Rights Act will give an opening because one of the principles of the European Convention, now a part of our domestic law, is that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ This is the second substantive right listed, after the right to life. There is European case-law on what that means, some of it involving decisions against the UK Government, such as that relating to interrogation techniques in Northern Ireland in the 1970s. What the case-law needs is a jurisprudential or philosophical or theological underpinning. Just as the Church has given the European Union and now domestic politics the concept of subsidiarity, so it can now offer the domestic and European courts the concept of the common good to provide that foundation for human rights.

The bishops explain in Vote for the Common Good that this is not ‘the greatest happiness of the greatest number’. Rather, it ‘is the sum of all those social conditions which allow the human dignity of all to be respected, and their basic needs to be met, while giving men and women the freedom to assume responsibility for their own lives’. Human rights are not the whole story because they may conflict or may have to be foregone in the interests of the common good: ‘Key elements of the common good such as peace, justice, compassion and mutual respect can only be protected and promoted through the collaboration and engagement of all.’

The right to marry and the right to respect for private and family life are protected by the Human Rights Act. So are the rights to freedom of thought, conscience, religion, expression, assembly and association. There is a prohibition on slavery, a right to liberty, to a fair trial and to freedom from retrospective criminalisation of behaviour. There is a prohibition of discrimination in the exercise of all these rights. Some church reactions to the Human Rights Bill concentrated on perceived threats in some of these rights. In particular, would a public authority, such as a church, be forced to conduct marriages of which it did not approve or be unable to dismiss headteachers of whose lifestyle it did not approve? On the former, the European Convention has been most respectful of churches — too respectful in the judgment of some other human rights lawyers. On the latter, there is no right to employment enshrined in the Convention or the Act so direct attacks on ‘discrimination’ in employment are not clearly covered. None the less, it is possible to imagine creative legal arguments which buttressed the cases already being taken to industrial tribunals where a head is dismissed from a church school (or indeed from other schools).

Partly to allay these fears, the Home Secretary added S.13 to the Human Rights Act. It states that, ‘If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.’ Various stances can be taken on the importance of a right. Some hold that all rights are equal. Some think that some rights are more equal than others. S.13 could be taken as suggesting that freedom of religion is the most important. Others argue that ‘absolute rights’, such as that against degrading treatment, are more important than ‘qualified rights’ such as freedom of expression where there is a balancing act inherent in the European Convention. The structure of such rights is that the first part of the Article sets out the right in absolute terms, ‘Everyone has the right to freedom of religion.’ The second part, however, explains that the right ‘may be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’ It is the essence of European Convention jurisprudence that the first part of the Article is to weigh heavily in the balance and that the word ‘only’ sets the scene for the second part. The right is only qualified where it is necessary. Rephrasing the Article, it could be put as ‘where it is necessary in the public interest’. This seems to me to be too loose a formulation, however, and the vital contribution of Christian theology here might be to introduce the notion of ‘the common good’ as the term to capture the circumstances in which the right has to give way or be restricted.

In any event, the best way to approach the Human Rights Act, however, is not to begin with a defensive mentality but to take appropriate opportunities to build up the judiciary’s understanding of the common good. A religious organisation which seems to ignore human rights questions until it is defending a tribunal case (S.13’s use of ‘court’ includes ‘tribunal’) would deserve to lose, however much it played with exceptions to or limitations on a right, but the signs are that a more positive engagement with the judiciary and wider public awaits us.

A third-party intervention ought to be judged on its merits, on the quality of its argument. Indeed, this is part of the attraction because the Church’s teaching would not be filtered through media indifference or hostility but could be judged for the quality of its reasoning. In practice, of course, a court is more likely to pay attention to a submission which comes with the moral and spiritual authority of church leaders where they have established a system to promote human rights (such as through the Bishops’ Conference) and where their own record on human rights is regarded as exemplary. On the former point, the Siamese twins’ case moved through the courts and to the hospital so swiftly that there might not have been time for more than the individual leadership of the Archbishop but this is likely to be exceptional. On the latter, a submission from bishops known for their prison visiting or their acts of solidarity with refugees is most likely to impress the judiciary. There are few short-cuts, therefore, to the task of building up a culture of promoting human rights and the common good. Nor should there be.

In an essay on the Tony Bland case, I described morally controversial legal disputes as Un-Easy Cases because anyone who thinks the ‘hard case’ can be resolved simply and who does not feel un-easy has not understood the issue, morality or law. It obviously helps, however, if one can approach particular disputes from a firm foundation of understanding human rights, locating them in a deep understanding of the common good. Here the Churches are much to be praised for recent statements, if not always for past practice. For example, the Catholic Bishops’ Conference of England and Wales’ statement on Human Rights and the Catholic Church in 1998, on the occasion of the 50th anniversary of the Universal Declaration of Human Rights, not only has the good grace to apologise for past wrongs but also powerfully explains that Catholic approaches to human rights are based on the ‘Catholic belief that two vital truths about human persons must always be held together.’

Firstly, all persons are unique, irreplaceable, destined for transcendent life, and so are not just units of some larger mass or entity, who could properly be treated as interchangeable, or merely as the instruments of another’s purpose. (For example, each person is embodied: all our thoughts and perceptions are inseparable from our senses, from their openness to the world and their active response to it. It follows that everyone’s experience is unrepeatable).

Secondly and equally important, everyone is a person-in-relationship whose well-being cannot be attained alone, and whose life can never be considered apart from the many relationships (more or less intimate or enduring) that make up its fabric. In practice, the individual person and the community will always have claims against each other: and their true fulfilment goes together. Neither an individualism that denies the claims of community, nor a corporate prosperity that excludes the well-being or dignity of individual persons, is ultimately tolerable.

These two truths, articulated in this passage well before last year’s Siamese twins’ case, are relevant not only to the un-easy case of Jodie and Mary but to all the litigation which the Human Rights Act will witness.

The Archbishop’s written submission in that case brought to the attention of the judiciary three powerful critiques of the Law Lords’ ruling in the earlier Bland case. Not only did the Archbishop refer the judges in his detailed legal submission to the masterful analyses of Bland by John Finnis and John Keown. He also introduced to the Court of Appeal the joint submission from the Anglican and Roman Catholic bishops in this country to the House of Lords Select Committee which considered the Bland case. This step will prove to be crucial in the development of human rights jurisprudence in the United Kingdom. Hitherto, there has been a tendency for judges to create space for themselves in the middle ground of what they take to be public opinion by caricaturing a crude utilitarianism as one extreme and the views of (as one Law Lord put it in the Bland case) Roman Catholics and Orthodox Jews as the other extreme. This enables the judges to think of themselves as pretty much in the centre ground. The fact is, however, that a broad spectrum of Judaeo-Christian opinion agrees on these issues and is itself firmly in the mainstream of great humanitarian thinking, as illustrated by the bishops’ joint reaction to Bland:

The arguments presented in this submission grow out of our belief that God himself has given to humankind the gift of life. As such, it is to be revered and cherished. Christian beliefs about the special nature and value of human life lie at the root of the Western Christian humanist tradition, which remains greatly influential in shaping the values held by many in our society. They are also shared in whole or in part by other faith communities. All human beings are to be valued, irrespective of their potential for achievement.

The central argument of the Churches’ reflection on the issues raised by the Bland case was that: Those who become vulnerable through illness or disability deserve special care and protection. Adherence to this principle provides a fundamental test as to what constitutes a civilized society. Because human life is a gift from God to be preserved and cherished, the deliberate taking of human life is prohibited except in self-defence or the legitimate defence of others — a pattern of care should never be adopted with the intention, purpose or aim of terminating life or bringing about the death of a patient (emphasis added).

This was quoted with approval by the Court of Appeal in the Siamese twins’ case. It illustrates that we should not judge a contribution to the common good solely by its impact on the instant decision. Lodging in the public realm a penetrating analysis is always of worth, even if it sometimes requires more than one reference for the judiciary to accept its insights.

The Archbishop’s submission has shown that these views are not the result of some extreme position which can be disregarded by those who do not share a particular religious faith. On the contrary, they are part of the mainstream of ethical thinking through the centuries, across the boundaries of time, faith and nationality. Professor John Finnis has explained lucidly in Natural Law and Natural Rights the ways in which natural law and Roman Catholic teaching dovetail but the one is not dependent on, nor restricted to, the other. As Finnis observes, the principles are ‘well recognised in other formulations: most loosely as "the end does not justify the means"; more precisely, though still ambiguously, as "evil may not be done that good might follow therefrom"; and with a special Enlightenment flavour, as Kant’s "categorical imperative": "Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only."’ These are also the fundamental principles on which human rights law has been developed. This is why the Church should face the new constitutional era in a positive spirit, taking every opportunity to build up a society in which the dignity of all is respected and our solidarity with the most disadvantaged is evident, both in our own human rights practices and in our submissions to the courts.

More by Simon Lee
Contents Page
 Back to Top

Home Page | Buy this Issue | Subscribe | Contents Page | Archive | The Tablet