The debate over the Human Rights Act and its parents - the European Court of Human Rights and the "Universal Declaration of Human Rights" - is a strange one. Not because the matter of 'rights' is unimportant or even that these laws are without value but because the presumption in all of this is that rights exist only because of our masters' benevolence. The debate seems to treat 'rights' in a way little changed from the rights granted by feudal lords to their most loyal servants - somehow our rights will disappear, melt like snow in Summer, were the Human Rights Acts to be scrapped.
The state constrains rights and then allows, in its benevolence, some of those rights to be freed. The state is not the source of rights but exists - or should exist - to protect those rights. The debate shouldn't be about the existence or otherwise of rights but about the best way to ensure those rights are guarded.
Let it be known that the British liberties are not the grants of princes of parliaments, but original rights, conditions of original contracts, coequal with prerogative, and coeval with government. That many of our rights are inherent and essential, agreed on as maxims and established as preliminaries even before a parliament existed.
It does not matter at all whether we have signed some declaration, taken part in some international court or passed laws within parliament. All that matters is that our rights are protected, that we can have confidence that authorities charged with upholping those rights will do so and that this will be done without fear or favour.
This is not the case. Take Article 19 of the Universal Declaration of Human Rights, that document that we cherish:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Does this say anything about being arrested for being rude about a diver? Or stopped from photographing a police station or an airport? Or the entire edifice now being built around 'hate crime' and 'equalities' - an edifice designed to bully people into accepting the left's newspeak rather than to deal with hate?
Perhaps there is a case for declaring some beliefs so dreadful and to merit their expression a crime - but where do we stop with defining those dreadful beliefs? And if it is right to prevent racism by making its expression a crime despite this being contrary to Article 19, surely it is also right to allow the deportation of criminals who constitute a threat to wider society despite their claim of a "right to a private and family life" under Article 8 of the UK's Human Rights Act?
In all the discussion around 'rights', there is an assumption that the Human Rights Act is intended to protect rights and not to contain fundamental rights within a body of law - to bring those rights back under the definition and purview of the state. So free speech is qualified - to such an extent that any protection of our 'right' to speak is nullified by the tools available to agents of government. The protection of "health or morals" seems so broad as to allow almost any statement ot be proscribed. And if this is not enough the Act allows the limiting of free speech to protect 'national security' and to prevent 'disorder'.
The Human Rights Act isn't a universal, sacrosanct declaration but, as with all laws, a flawed, controlling interpretation of the idea of 'rights'. The idea that changing it - even scrapping it - represents a backward step and that somehow our rights would vanish is nonsense. The most important rights - speech, movement, assembly, protest, exchange - these rights are more honoured in the breech by the Human Rights Act. The state is granted so many controls and the 'rights' are so curtailed that it's hard to see that the loss of the Act would make much difference.
In discussing 'rights' we should be talking first about what are the things that make us free and then what are the justifications for limiting somebodies freedom. Instead we indulge in an ever more occult discussion - guarded closely by lawyers - where the parsing of particular sentences and the dissecting of judges' opinions casts a thick mist over any understanding of 'rights'.
Finally, just as 'equalities' rules run the risk of being used to secure advantage, so it the case with the Human Rights Act. And because our judges care more about words than intention - such in the curse of laws - the result is decision-making that does not promote rights but that brings the protection of rights into question. To the ordinary man such inconsistencies, such egregious interpretation of 'rights' means that we run the risk of destroying protection on the altar of lawyerly pedantry.