Tuesday, September 02, 2014
The strange definition of "racism"
Lord Neuberger: giving democracy a hammering
When a UK judge makes a speech about human rights, the UK press will gleefully report anything he says about pesky foreign judges in Strasbourg. So long as he stands up for UK judges sitting in London, the press will be onside. This is unfortunate because UK democracy is being reordered by values and ideas stemming from within the UK and which have now got little to do with judgements given by the European Court of Human Rights. The Strasbourg court has become a convenient whipping boy for British politicians and the press. Yet while the press reports the whipping, it ignores the far more significant impact that human rights are having on UK democracy.
The Strasbourg court is a much maligned and weakened institution. This became clear earlier this month with its decision to award no compensation and no costs to 10 UK prisoners who claimed that being banned from voting was a breach of their human rights. Since the Strasbourg court had previously held that prisoners’ disenfranchisement was a breach of human rights, this decision shows that, as the former Justice Secretary Jack Straw MP observed, ‘the Strasbourg court looked over the abyss and backed off’ in order to avoid ‘a whirlwind of opposition on a scale that could well have undermined its legitimacy’. In future, the rule of law from Strasbourg can be expected to yield to a parliament that speaks with a clear voice and which is led by a prime minister who would be ‘physically ill’ if a contentious Strasbourg law were enforced.
Speaking shortly before the Strasbourg court’s capitulation on prisoner votes, Lord Neuberger, president of the UK Supreme Court, made his own modest criticism of the ‘inconsistent decisions’ made by the ECHR over the years, noting that the UK judiciary should ‘be more ready not to follow Strasbourg chamber decisions’.
Because the Strasbourg court has overreached itself by making a number of politically controversial decisions in recent years, the UK’s judiciary is keen to distance itself from that tainted institution. The objective being to avoid what former UK home secretary Jack Straw described as the undermining of ‘basic human rights’. By urging UK courts to exercise a little more independence from Strasbourg, Lord Neuberger has sought to insulate domestic human-rights jurisprudence from the criticism that is attached to many Strasbourg decisions.
Lord Neuberger’s modest Eurosceptic tone was heeded by the UK press, which reported the speech with these headlines: ‘Judges “too ready” to follow Strasbourg rulings says Lord Neuberger’ (Daily Telegraph); ‘British courts “too ready” to follow European Court of Human Rights’ rules’ (the Guardian); ‘British courts should be “more ready” to ignore human-rights rulings made in Europe, says the UK’s top judge Lord Neuberger’ (Daily Mail); ‘Have confidence to overrule Strasbourg, says UK’s top judge’ (The Times). The articles written under these headlines took their cue from one paragraph out of Lord Neuberger’s 43-paragraph speech.
Yet, contrary to the way Lord Neuberger’s speech was reported in the UK, modest Euroscepticism was neither the main nor most significant point made by ‘the UK’s top judge’. Lord Neuberger used the speech to make clear his enthusiastic support of human-rights laws. He described parliament’s passing of the Human Rights Act in 1998 as the start of ‘the age of enlightenment’. Lord Neuberger’s justification for human-rights laws was far more newsworthy than his remarks on Strasbourg. The most significant part of his speech was this passage on human-rights laws:
‘Particularly in the light of their recent history, mainland European countries appreciate the need for checks and balances, and realise that undiluted democracy is risky. The tyranny of the majority is bad enough and, as the past century demonstrated, it can lead to far worse things. However, you only have to look at the history of Germany over the past 100 years to see how valuable it can be for judges to be given a substantial role, supported by the rule of law, in protecting individuals against the might of the modern state.’
As a lawyer who has spent decades finessing arguments to make them sound persuasive, Lord Neuberger knows that it is better to be against something implied to be bad (‘undiluted democracy’) than to be against something good (‘democracy’). He also knows that it is desirable to attack something framed as bad (‘the tyranny of the majority’) rather than to attack something good (‘democracy’). And it is felicitous to deploy phrases that are self-evidently good (‘checks and balances’) as cover for something different (judicial collaboration with parliament over the making of laws). It is also powerful to imply that your argument could somehow have hindered German aggression and Nazism.
Despite the skilful use of these lawyerly devices, the gravamen of Lord Neuberger’s argument is clear. Democracy, in the form of parliament being sovereign to determine the law free of legal collaboration, ‘is risky’. Enacting laws on the basis of majority support is a ‘tyranny of the majority’. Without constitutional judicial oversight of Parliament, 100 years of Germany history may be repeated. In order to avoid this appalling vista, democracy needs to be diluted: democracy needs to be overseen by the judiciary using human-rights laws to protect the people.
Lord Neuberger’s approach is best understood with the example he gives of the Supreme Court’s recent consideration of the Tony Nicklinson assisted-suicide case. He notes how parliament has used the criminal law to impose a blanket ban on assisted suicide with primary legislation, the Suicide Act 1961 (which has been considered, updated and retained by parliament on subsequent occasions). He then posed this interesting question: ‘The point is whether that [act of parliament] means that the law on the topic is purely for parliament or whether the courts can say that, even though there is a clear statutory prohibition [on assisted suicide]… the court can say to parliament that that is contrary to the [European Convention on Human Rights] as it applies in the UK.’ He answered the question in favour of judicial involvement by noting that in ‘our recent decision of Nicklinson, we unanimously held that the courts did have that power’. A power, that is, to tell parliament that its legislation on this contentious issue of public policy is contrary to human-rights laws.
For various reasons, the Supreme Court did not declare the assisted-suicide law to be contrary to human-rights laws but a significant factor was that, as Lord Neuberger put it, ‘the courts should hold off giving a declaration of incompatibility so that parliament could consider the issue with the benefit of our judgements’. The Supreme Court has warned parliament that unless the law is changed it may be moved to declare the blanket ban on assisted suicide to be contrary to human-rights laws.
What we have here is a form of democracy where judicial opinions on matters of public policy are given particular weight. Laws are not simply made in parliament by elected representatives, for they require MPs to consider the views of learned members of the judiciary. As one judge of Supreme Court, Lord Wilson, put it, there is now a ‘collaboration between the courts and the legislature’. Or, as Professor Roger Masterman put it, ‘at the heart of [human-rights laws] lies the attempted reconciliation of judicial and political power, or – put another way – of interpretive and legislative power’ (1).
The relationship between parliament and the judiciary is now opaque. The UK judiciary cannot declare a law to be unlawful but it can declare a law to be incompatible with a human right. In theory, parliament can disregard such a declaration as the courts cannot require parliament to change the offending law. But Lord Neuberger drew attention to the practical reality of this process by noting that ‘the power now given to judges in the UK by… the Human Rights Act is demonstrated by the fact that, with one exception, parliament has always acted on every such [declaration] and cured any incompatibility’. In theory, parliament retains its sovereignty, but in practice parliament exercises it after considering any judicial guidance that has been given.
In Lord Neuberger’s ‘age of enlightenment’, the judiciary’s powers have increased considerably. The constitutional relationship used to be that parliament made the law (save where parliament allowed the judiciary to develop the common law) and the judiciary interpreted it. This clear separation of responsibilities has broken down. Nowadays, the judiciary still interpret the law but they also have a ‘collaborative’ role in shaping it. Lord Neuberger noted that the Human Rights Act has effectively conferred ‘a law making function on the judiciary’.
Under the Human Rights Act, parliament’s powers are, in practice, diluted and the judiciary’s powers are strengthened. Democracy is degraded as the will of the majority is seen as risky. Lord Neuberger’s criticism of ‘undiluted democracy’ is effectively a criticism of the unfettered ability of parliament to make and change laws. This matters because parliament is an elected body. MPs derive their authority from the ballot box. An MP’s views are subject to public scrutiny and debate, with the electorate ultimately having the last word. MPs win or lose support on the basis of their political view of society.
The judiciary is not elected (and neither should it be). Judges derive their authority on the basis of their technical ability to understand and apply the law. Their judgements are formed after hearing submissions from lawyers about the law. Judges do not, at least not openly, form judgements on the basis of a political view of society.
The issue of assisted suicide highlights the key problem here. When MPs debate assisted suicide they make clear their moral and political standpoints, which means the public can engage with these arguments and ultimately vote the holder of a particular opinion in or out of parliament. Nine Supreme Court judges recently considered the issue of assisted suicide; they considered it with 16 learned members of the bar. Six months later they produced a judgement the length of a book. Few members of the public will read it. Their lordships were constrained to address the issue of assisted suicide within a legal framework rather than from a freely chosen moral and political framework. The judges who made this ‘law’ are beyond democratic accountability. In a democracy, issues of public policy, such as assisted suicide, should be decided by elected representatives who should be engaging with the public and not collaborating with the judiciary.
The judiciary did not initiate this process; parliament gave the judiciary its new powers by enacting the Human Rights Act 1998. But the process that parliament initiated is now acquiring a momentum of its own, and speeches like Lord Neuberger’s warrant a serious public debate. Framing the discussion on human-rights laws simply in terms of Euroscepticism will only avoid or confuse the debate. What happens in the Strasbourg court is far less important that what is happening in courts north of the English Channel.
The NSPCC’s war on youth culture
The charity’s new anti-gang initiative sounds suspiciously like an assault on young people.
Following the widespread riots that plagued English cities in the summer of 2011, the Home Office published a report entitled Ending Gang and Youth Violence. Rather than blaming the riots on the provocations of a hostile police force, Westminster looked to the role that professional criminal outfits had played in encouraging the looting and criminal damage that spread through cities that summer.
Of those arrested in the riots, one in five were identified as gang members – considering the number of people who protested peacefully and consequently didn’t face arrest, the story of a criminally organised uprising seems more than a little threadbare. The Home Office reported that in London – the area with greatest concentration of gangs in the UK – only 22 per cent of violent crime more generally is gang-related. This proportion shrinks dramatically for the rest of the country. What’s more, there are no associated statistics to suggest that children or young people are particularly involved in these activities. In fact, one might safely assume that these actions are largely carried out by organised crime syndicates run by adults.
Why, then, has the NSPCC launched a national helpline to protect children from a gang culture that, though alive in some form, is hardly thriving? This week, the NSPCC, backed by the Home Office, set up a helpline to provide advice for parents concerned about their children’s involvement in gangs. The NSPCC’s statistical justification for the campaign is that one-in-six young people aged between 13 and 15 claims to know a gang member, yet it is startlingly vague about what being a gang member entails. It fails to clarify whether or not the adolescents surveyed are acquainted with members of violent criminal gangs or if some of their friends simply wear matching hoodies and spraypaint rude words on underpasses.
The helpline’s homepage lists supposedly telltale signs of gang association for parents to look out for. These include your child spending time with people you don’t know; coming home with unexplained injuries; getting into trouble at school; becoming secretive; and staying out late. The list does go on to include ‘evidence of violent or criminal activity’ as an indicator, but otherwise it reads rather like a rundown of the general behaviour to expect from any adolescent worthy of the name. It seems that the NSPCC’s latest crusade is not about tackling a criminal underworld that sucks in children; rather, it’s a concerted assault on the habits of young people and the elements of youth culture that pearl-clutching parents find distasteful.
Ever since teenagers have been a recognisable cultural force, young people have been drawn to gangs and sub-cultures. Admittedly, the NSPCC is fairly accurate in its assessment of the reasons for this. Gangs and youth movements provide young people with a rebellious outlet – a sense of identity and excitement that is made more attractive by a tinge of the illicit. Each new generation gives birth to a new youth culture – mods, rockers, punks, skinheads, casuals – and each new culture is immediately decried as criminal and violent. In every case, there exists a kernel of truth in the allegation of gang-style behaviour, but only a few of the young people involved in a particular sub-culture will ever engage in serious criminal activity; most stop at casual substance use, with occasional forays into dealing drugs. Serious violence is rarely as widespread as the attendant media panic would have you believe, and the young men billed as a threat to the nation’s moral fibre become a footnote in British cultural history within 10 years or so.
The NSPCC’s project indulges this timeless hysteria, as shown by the structure and spirit of its policy. A programme that earnestly sought to diffuse gang violence and impact the lives of at-risk children would presumably begin with those children in gangs. If sincere steps were being taken to end youth gang violence then helping community workers engage directly with gang members would doubtless be the first priority. Yet the NSPCC’s big idea is to provide an outlet for concerned parents.
In a statement about the project, John Cameron, NSPCC head of child protection, explained the charity’s decision to tackle gang violence, before adding: ‘Parents, carers and other adults often struggle to know where to turn when faced with a young person who they think might be involved in a gang.’
The NSPCC is quite clearly putting the cart before the horse here. After dubiously identifying gang violence as one of the key problems facing children in Britain, it goes on to explain a system that it has devised to alleviate the burden for parents and guardians. Confronted by the spectral presence of ‘kids with guns’, the NSPCC has responded with a 24-hour freephone helpline for worried parents.
This appeal to concerned parents betrays a deep-seated social conservatism at the heart of this new project. The reason the NSPCC finds gangs so barbaric is not solely because of the effect they have on vulnerable children, but because of their distasteful and anti-social presence in Britain’s cities and towns. Citing the involvement of children in gangs is a way of policing the idle young people who play alienating music from garish cars. The charity conflates the urban youth culture that their patrons find unseemly with the violent gang culture that affects very few children. In doing so, it does both groups a huge disservice. The cultural association and congregation of groups of young people is criminalised by a silent army of net-curtain-twitching vigilantes. And the few young gang members who genuinely need the charity’s help are offered the meagre comfort of a 24-hour phoneline.
Kick the thought police out of football - and smartphones
There is a scandal unfolding, involving football manager Malky Mackay, his sidekick Iain Moody and a series of ‘sexist, racist and homophobic’ text messages. But not quite in the way that has been widely reported.
It is a scandal that a top law firm representing a private company, Cardiff City football club, should be able to get a High Court order empowering its ‘investigators’ to mount a dawn raid on the home of a former employee – Moody – seize his computers and smartphones and take digital images of ‘evidence’. This is a private financial dispute, between Cardiff owner Vincent Tan and the manager and head of recruitment he had sacked, over some allegedly suspect transfer deals. It is not the police pursuing terror suspects. What next – court orders enabling private goons to impound phones to see who has been tweeting rude things about their bosses or teachers?
It is a scandal that a few of the thousands of private text messages which investigators found on the snatched phones should be reported to the Football Association, leaked to the media, and used to brand Mackay and Moody as ‘sick’ and ‘vile’ racists, sexists and homophobes, costing them new jobs at Crystal Palace and possible bans from football. If what we say or think in private is to be used as public evidence of a Thought Crime, they are going to have to turn football stadiums into prison camps to hold all the wrongdoers.
It is a scandal that moral and media crusaders seeking to sanitise football have seized upon a handful of words in the highlighted texts as ‘proof’ that the beautiful game remains a secret hotbed of ugly bigotry. Having failed to find much racism or homophobia on the pitch or in the stands, these self-righteous prigs are delighted they might have discovered some inside a football man’s mind; they now want all players, officials and fans subjected to a re-education programme to teach us the correct groupthink.
Amid all the expressions of outrage about the vile, sick etc texts, few questions have been asked about any of this. Nobody even seems to have noted the irony of law giants Mishcon de Reya – a firm in the frontline of suing newspapers for alleged phone-hacking and invasions of privacy – acting as legalised hackers and invaders by trawling through Moody’s 70,000 texts and 100,000 emails, the cherry-picked details of which then end up all over the media. Instead, it has been a deluge of denunciations of Mackay and Moody, in a ‘debate’ about as one-sided as the Real Madrid forward line versus Cardiff City’s defence.
Sure, the few texts splashed across the news make unedifying reading (though they would surely only be shocking to the easily shocked). Mackay and Moody (it has not even been made clear who sent which text to whom) did themselves no favours by tapping in such messages as ‘Fkin chinkys’, ‘He’s a snake. A gay snake’, ‘Go on fat Phil. Nothing like a Jew who sees money slipping through his fingers’, ‘Not many white faces in that lot’ or ‘I bet you’d love a bounce on her falsies’. Guilty of private outbursts of puerile stupidity, m’lud.
But the notion that they should be sacked, publicly humiliated, if not hanged, and drummed out of football for these texts is far more outrageous and dangerous than any of their snickering text messages. It is not as if they used those words on a football pitch or in a board meeting. It was private correspondence between friends and close colleagues. We need not approve of what they said at all, but we should defend their right not to be put in the stocks for the digital equivalent of whispering to one another at the back of the class.
Treating the public and private spheres differently is vital to the healthy maintenance of both. Most of us – and especially some of us – will rant and rave about life and other people in private in a way that we would not in public. The private sphere is a refuge from the tough examination of life outside, and also where we formulate the things we want to say to the world and how we wish to say them.
In recent years, however, the distinction between the public and the private has become as blurred as a muddy touchline. Our voyeuristic political and media class increasingly demands that we be made accountable for what we do in private. Meanwhile exhibitionist public figures have turned their private lives into a profession.
The Mackay-Moody show reveals that things have now gone further still. Lord Ouseley is head of the government-and-FA-backed Kick It Out lobby, the witch-finder general in the phoney moral crusade against racism and homophobia in football. He seized upon the publication of those text messages with relish. ‘What you see at face value is not always reflective of the attitudes which are actually held deep down’, declared Ouseley. ‘It’s easy to present yourself as being reasonable and fair, and to behave in ways that hide prejudice and bias. However, any in-depth forensic examination or analysis of hidden views would be likely to reveal otherwise. That is what makes it difficult to eliminate and eradicate such prejudices, bigotry and even hatred.’
For Ouseley and Co, it seems, any public displays of decency are just a façade put up to disguise our inner bigot. What is real are people’s ‘hidden views’ based on ‘prejudices, bigotry and even hatred’. Thus we should be judged, not on our public words and deeds, but on the private prejudices that we do not express, but which can be discovered by ‘forensic analysis’ of our innermost thoughts. Then no doubt those who are somehow immune to prejudice, such as Lord Ouseley, can try to ‘eliminate and eradicate’ the racist within through a re-education programme.
Kick It Out and its media fan club have also been quick to use the Mackay-Moody scandal to give football another good kicking, insisting that those few texts are just the tip of the iceberg of ugly bigotry that is bringing the beautiful game into disrepute. Having spent years desperately trying and failing to find the spectre of serious racism in British football, the ghost-hunters have now fallen about a few stray private texts as ‘proof’ that the problem is rife. We might reasonably draw the opposite conclusion: that this overblown circus shows how rare incidents of real racism are around modern football, and that if anything brings the game into disrepute it is the shrill scaremongering of the phoney moral crusaders. But presumably that will only prove that we are at best in denial, and at worst part of the secret racist conspiracy.
Of course, nobody wants to endorse bigotry – although we surely ought to defend the freedom of thought and speech for pillocks, too, particularly in the privacy of their own home/phone. But this sort of manufactured outrage is likely to have a wider chilling effect on what people feel free to say or even think anywhere.
The dangerous trend towards policing private words and thoughts in sport and society, highlighted recently on spiked, inevitably brings to mind the descriptions of the Thought Police and thoughtcrime from George Orwell’s Nineteen Eighty-Four. And as ever, there is more to Orwell’s insight than is often assumed. The purpose of the Thought Police is not simply to punish those found guilty of mentally erring from the politically correct state diktat. It is also to encourage the rest to practice ‘crimestop’ – described by Big Brother’s public enemy number one, Emmanuel Goldstein, as ‘the faculty of stopping short, as though by instinct, at the threshold of any dangerous thought… Crimestop, in short, means protective stupidity.’
Thanks, but I’ll take the risk of living in a relatively free world where there might be dodgy private texts lurking on somebody’s smartphone, rather than one where everybody’s inner thoughts are laid bare and we are safe in a blanket of collective ‘protective stupidity’.
Political correctness is most pervasive in universities and colleges but I rarely report the incidents concerned here as I have a separate blog for educational matters.
American "liberals" often deny being Leftists and say that they are very different from the Communist rulers of other countries. The only real difference, however, is how much power they have. In America, their power is limited by democracy. To see what they WOULD be like with more power, look at where they ARE already very powerful: in America's educational system -- particularly in the universities and colleges. They show there the same respect for free-speech and political diversity that Stalin did: None. So look to the colleges to see what the whole country would be like if "liberals" had their way. It would be a dictatorship.
For more postings from me, see TONGUE-TIED, GREENIE WATCH, EDUCATION WATCH INTERNATIONAL, FOOD & HEALTH SKEPTIC, AUSTRALIAN POLITICS and DISSECTING LEFTISM. My Home Pages are here or here or here. Email me (John Ray) here.