Blog

Human Rights and Human Dignity

We are accustomed these days to rights talk. Rights have a significant degree of authority behind them. The European Convention of Human Rights is a foundational document ratified by a number of European countries. The concept of rights contained therein appears to command the assent of a number of Western democracies. Not only that, when an appeal to some human right (or the violation of such a right) is made it is often capable of putting to rest most social and political discussions.

Nevertheless, there remains some confusion over the nature of human rights, and whilst public discussions may often appeal to rights and rights talk, such discussions are rarely ever principled or follow a logical train of thought. Not only that, significant public voices addressing the issue of rights in relation to abortion, including representatives of Amnesty international, have stated that one is only a subject of rights if such rights are afforded to the individual by some governing body. Hence, if, on their reading, the unborn are not afforded legal protection, then they are not subject to rights and human rights do not apply to them.

This confusion quickly clears up when we actually read the human rights documents, that is, the Universal Declaration of Human Rights and the European Convention on Human Rights. The UDHR is quite clear in linking the ‘equal and inalienable rights of all members of the human family’ with human dignity, and the ECHR follows the UDHR in listing those rights that pertain to all humans in virtue of their dignity.

It is human dignity that grounds rights, and human dignity is something that one possesses not in virtue of being a member of a privileged group, such as all those who have been born, or some positive law granting one legal entitlements; rather, human dignity is something one has in virtue of being human. This dignity flows from human nature, and it does so precisely because human nature is rational nature. Human beings are the kind of things that are rational, whether they exercise their rationality or not. Hence they are the kinds of things capable of determining their own ends (regardless of whether they do so or not), and as so capable they themselves must not be the instrument for anybody else’s end; for that would be to treat them as less than human. Hence every human being is to be treated in light of the dignity that they have; regardless of the legal recognition or otherwise of such dignity. Indeed, it is precisely because humans have such dignity independently of state recognition that one can criticise the state or its authorities for abuses of such dignity.

Rights primarily flow from dignity insofar as human beings must be treated in such a way that their dignity is not violated. This fundamentally entails not subjecting their lives to the will of others, in which case we have a right to life, a right not to be tortured, not to be enslaved or put into forced labour. Flowing from this freedom from being subject to the will of others humans have a right to liberty and security, a fair trial when accused, and a legal framework within which punitive measures are exercised. Being free from the will of others all humans have a right to a private and family life, freedom of thought, conscience and religion, freedom of expression, assembly, and association, and the right to marry.

It is clear then that beginning from the principle of human dignity we draw out these various rights all of which revolve around dignity; failure to respect these rights is a failure to treat humans as fully human. Effectively what these rights ensure are the conditions by which we can live lives in accord with our human nature. In focusing human rights on human dignity, the drafters of the human rights documents did not envisage human rights as things conditional upon state or legal recognition. At the time these documents were drafted Europe had just emerged from a second war which saw some serious human rights abuses, and it is doubtless that having states sign up to these rights and ensure compliance therewith is a good thing. But compliance or otherwise with these human rights by a state does not entail that one is not subject to these rights. Hence, regardless of whether or not a state grants to humans or a certain class of humans, such as the unborn, these rights, those human beings nevertheless have these rights. Any sort of rights talk which classifies humans in one way or another and attributes rights to one class and not to another is absurd and contrary to the nature of human rights which all humans have in virtue of being human.

Dr Gaven Kerr

Blog

Clarity from the Supreme Court

On 10th October 2018 the Supreme Court, the highest UK court,  delivered its much anticipated judgement Lee v Ashers Baking Co Ltd [2018] UKSC 49.

The story has been well rehearsed – Ashers is a company owned by committed Christians, the McArthurs. Mr Lee was gay and worked for Queerspace. He was an existing customer of the bakery and in May 2014 wished to have the slogan “Support Gay Marriage” iced on a cake he ordered. This was refused and the charge of discrimination commenced, aided by the Equality Commission NI, which sought to test the legal boundaries of discrimination and confirm that Mr Lee had been discriminated against on the grounds of sexual orientation and/or  political opinion. Mr Lee succeeded in the County Court and NI Court of Appeal for reasons which were somewhat obscure to lawyer and layman alike.

The Supreme Court’s  judgement, however,  is a model of clarity. It held, regarding discrimination on the grounds of sexual orientation, that:

1. This was a case of “direct discrimination or nothing.”

2. Direct discrimination is by definition, treating people differently.

3. The correct comparator was other people, not different messages.

4. The circumstances of any comparison needed to be “the same or not materially different.”

5. Support for gay marriage was not a proxy for any particular sexual orientation, since anyone of any orientation could support it.

Lee v Ashers therefore differed from James v Eastleigh [1990] 2AC 751 – free swimming related to differing retirement age for men and women – and Preddy v Bull [2013] UKSC 73 (B&B accommodation only for heterosexual married couples). The complainants in these cases were adversely affected in law, because of a proxy for the protected characteristic.

6. There was no associative discrimination here – evidence of Ashers previously serving gay customers including Mr Lee himself and  employing gay staff, all put paid to that.

7. “In a nutshell, the objection was to the message and not to any particular person or persons.”

The Supreme Court made it abundantly clear that in this case, the cause of equality was done “…no favours to seek to extend it beyond its proper scope.”

The Supreme Court also examined discrimination on the grounds of political opinion. It accepted that

1. Support for gay marriage was a political opinion.

2. It pointed out that discrimination can arise irrespective of motive.

3. The legislation was designed to protect those who held an opinion from less favourable treatment, as compared with others who did not hold such an opinion.

4. It was clear that Ashers had previously served Mr Lee in other ways. Likewise they would have refused to ice the cake with this message, irrespective of the political opinion of the person asking for it. The Supreme Court took the view that it was not Mr Lee’s opinions or beliefs which resulted in the refusal of the order, rather:

“The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not the man.”

An interesting aspect of the judgement was how the Supreme Court dealt with the European Convention rights of the McArthur’s who owned Ashers, as opposed to the company itself. It concluded that in order to uphold the qualified ECHR rights of the McArthurs under Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression), the company should not be found liable. This differed from saying that the company had Convention rights.

Rather, to ensure that the McArthurs were not obliged to supply a cake iced with a message with which they profoundly disagreed or indeed be compelled to provide goods facilities or services expressing  a message with which they disagreed, unless justification was shown, the Convention rights could be invoked to protect the McArthurs, since to do otherwise would negate their Convention rights.

IMPLICATIONS

Significantly the Supreme Court was unanimous in reaching its decision. No dissenting voices confused the issue. Individuals are protected from compelled speech whether in icing, print, or orally. The groupthink mentality has been curtailed at least in the context of offering goods, facilities, and services.

Whether this is a victory for religious or political freedom has already been widely debated. However most commentators agree that the Supreme Court has stood up for freedom of expression, something which unites Baroness Hale, Peter Tatchell and no doubt, supporters of Iona (NI), on a significant area of social policy.

Shortly after she issued the judgement in Preddy v Bull, Baroness Hale gave a lecture at Yale Law School on Religion and Sexual Orientation: the clash of equality rights. She examined the case law on the subject and dealt with criticisms from the Archbishop of Canterbury and the Attorney General of Northern  Ireland on how  equality law had developed, particularly as it appeared increasingly to sideline religious belief or indeed fail to understand or show sensitivity to it.

Baroness Hale defended the role of the courts by explaining that the Law Commission had dismissed calls to legislate against offending religious feelings. However, she noted in examining Canadian case-law, that provision had been made there for a “reasonable accommodation” defence in dealing with conflicts of rights. She also acknowledged that some Christians did feel a lack of respect for their beliefs and queried whether a more nuanced view would be better.

She concluded:

“I find it hard to believe that the hard line EU law approach to direct discrimination can be sustainable in the long run. But I am not sure how comfortable I would be with the sort of balancing exercise required by the Canadian approach.”

Perhaps in Lee v Ashers we can see the arrival of some much-needed nuance into the conflict between competing rights through the mechanism of freedom of expression.

Although the Ashers have been vindicated in this matter, there will undoubtedly be many more conflicts to come where rights will clash. Freedom of conscience in medical matters such as abortion and euthanasia is one which might benefit in part by this decision but I very much doubt if it will be the last word on conscientious objection.

MARY J LEWIS BL

Blog

Freedom of the Will

Freedom is one of our most prized assets; we rightly think that any situation in which we are not free is a situation that is intolerable for human life. Indeed, any state or society that does not recognise the freedom of its members as a basic principle is one that ought to be condemned and perhaps even face sanction. However, we do not prize freedom so highly that it can cut through anything like a double-edged sword; we rightly curtail the freedom of others in certain circumstances. Here I would like to consider the nature of human freedom and why in fact we can legitimately curtail it without treating the person as something less than human.

To begin with, we rightly prize freedom because it is a feature of our rational nature as human. Human beings are rational animals, in being rational they not only are able to come to terms and know their environment (taken to the extreme of knowing the very principles by means of which the universe can be understood), but also to act in accord with that knowledge. The ability to act in accord with what we know is the foundation of our freedom. We act in light of our knowledge because given what we know we can see some end or goal as choiceworthy and implement a course of action to pursue that end. Non-rational animals may pursue an end because of a natural disposition by which that end exercises a magnetic attraction on them, whereas humans reason about the end (perhaps many ends) determining it (one of them) to be worthy of choice. Our choice then is a feature of rationality, and to take that choice away from us is to treat us as something less than human.

If that were all there were to freedom of the will, things would be quite simple; for it would simply entail that our choices in principle must be free in order to be human, so unless we have freedom of choice we cannot be free. But things are a little more complicated than that. I noted above that when we exercise the freedom of the will we do so because we see some end as worthy of choice, this in contradistinction from other ends that are not so worthy, but still could be chosen. Thus, the exercise of freedom in making choices is not simply ordained to pursue anything whatsoever, but to pursue those ends that we deem worthy. Our freedom then is exercised in the pursuit of some good that we envisage, one that will perfect us or others (and in turn us in the process). Hence freedom of the will would be incomplete unless it is understood as ordained to the pursuit of choiceworthy ends.

It is the choiceworthy ends to which our free will is ordained that provide constraint on our freedom. Often it is the case that states set down laws by means of which a person’s freedom is threatened if they do not pursue what are generally taken to be choiceworthy ends; murder is the classic example, since there is no justification for the pursuit of murder as an end worthy of choice, and so the state mandates that any exercise of freedom in the pursuit thereof is an act unworthy of choice and hence freedom.

Freedom of the will then is not a freedom to chase after anything whatsoever, but a freedom to pursue that which is worthwhile, in other words, freedom of the will is a freedom to become excellent, to perfect and better ourselves, or, as Aristotle would say, to pursue virtue. It is not a freedom to pursue vice, since not only would that be an abuse of freedom, it would also limit freedom enslaving the practitioner to the particular vice in question thereby making him or her less free. Hence, freedom of the will is only consistent with those choices that promote human flourishing, and not those which undermine freedom by opting for those ends which do not allow the human person to flourish.

Freedom of the will then must exist in tandem with order or law so that such freedom can be pursued and directed towards that which makes its bearer excellent. Without such law and order as the boundary within which freedom can be practised, there is no freedom but enslavement to vice.

Dr Gaven Kerr